44 Ind. 223 | Ind. | 1873
This action was brought by the appellee against the appellant. Issues having been formed, there was a trial'by jury, and a verdict for the plaintiff. A motion by the defendant for a new trial was made and overruled, and there was judgment on the verdict for the plaintiff
The appellant has assigned as errors the overruling of a demurrer to the first and second paragraphs of the complaint, the refusal to strike out a part of the second paragraph, and the refusal to grant a new trial.
The first paragraph of the complaint alleges that, on the 14th day of September, 1869, the defendant executed to the plaintiff a warranty deed for certain real estate in Shelby county, Illinois, and states that prior to the execution of said deed, the land was mortgaged by the defendant to one Harper,to secure the payment of a promissory note executed by the defendant to Harper. The mortgage contained a power-authorizing the mortgagee, his legal representatives, or attorney, after notice and in case of default in the payment of the debt, to sell the premises, and it is alleged that by vir
The objections to the first paragraph of the complaint are, 1st. That it does not allege that there was a default in the payment of the note secured by the mortgage; and, 2d. That it does^ not state that notice of the time and place of the sale was given, as required by the terms of the mortgage.
In the second paragraph of the complaint, it is alleged that the parties resided in the county of Putnam, in the State of Indiana, and on the 7th day of August; 1869, entered into an agreement or contract, a copy of which is filed with the complaint, by which they agreed to exchange certain real estate and personal property, the plaintiff agreeing to pay off the note executed by the defendant to Harper for five hundred and forty dollars; the real estate which Clark was to convey being the said real estate, in Illinois, mentioned in the first paragraph of the complaint. It is then alleged' that at the time of the execution of said agreement and the execution of the deeds in pursuance thereof, the defendant falsely and fraudulently represented that said lands, so sold and conveyed by him, were free and clear from all and every lien and incumbrance, and that the note of Clark to I-Iarpcr, mentioned in the agreement, for five hundred and forty dollars, was not due and payable until the spring of 1870, and that the plaintiff relied upon and believed said representations to be true; that the defendant knew such representations to be false and fraudulent, and fraudulently concealed the existence of any lien or incumbrance on said land. It is then alleged that at the time of the execution of said
It is quite evident that there is here a misjoinder of paragraphs or causes of action; the cause of action in the first paragraph arising ex contractu, while that in the second paragraph arises ex delicto. The former at common law would have been a cause of action in covenant, and the latter in trespass on the case. But no question was made in the common pleas on this ground, nor is any made here, nor could any be successfully made here. 2 G. & H. 81, sec. 52.
The covenant in the deed, on which the first paragraph of the complaint is based, is a covenant for quiet enjoyment, and not against incumbrances or of warranty. To constitute a breach of it, the general rule is, that there must be an eviction under a paramount title. A valid sale upon an incumbrance which was upon the land at the date of the deed, and an eviction by the purchaser, would constitute a breach of the covenant. The mere existence of the incumbrance would not. We are of the opinion that the allegation in the first paragraph of the complaint does not show a valid sale under the power in the mortgage. It falls to show the giving of notice of the sale, as required by the power, and also fails to show a sale in pursuance of such notice and at
Blackwell, in his work on Tax Titles, p. 502, in discussing the mode of pleading tax titles, and incidentally the pleading of title generally, says: “There is another rule of proceeding which requires * that facts only are to be stated, and not arguments or inferences, or matter of law.’ An averment that the proceedings of the officer were ‘ regular,’ ‘ legal,’ etc., is a mere legal conclusion, without giving the facts from which that conclusion is drawn. Therefore, in all such cases, the pleader must show, with reasonable certainty, the particular facts upon which the regularity or legality of the proceedings depends, that the court may see whether the requirements of the law have been complied with or not. For instance, where a submission requires an award to be made in writing, under the hands and seals of the arbitrators, by a particular day, it is not sufficient in pleading the award, to allege, simply, that the arbitrators * duly made their award,’ ” etc. Again, on p. 504, he says: “ Another rule of pleading, equally well settled, is, that in all cases where a party claims
It- being essential that the eviction should be by virtue of a paramount title, it seems to us that the pleader should have alleged that after the maturity of the note, notice was given as specified in the mortgage, stating specifically how it was given, and that the sale was made at the time fixed in the notice, and at the place mentioned in the mortgage. Without these allegations, we do not see how the paragraph in question can be upheld. See Rawle Cov. Title, 181, et seq. This defect in the paragraph cannot be overlooked, as counsel for the appellee suppose, on the ground that a motion might have been made by the defendant to have the paragraph made more specific. Platt, in his work on Covenants, p. 328, says: “Where an ejection has actually taken place, in assigning a breach it is sufficient to allege, that at the time of the demise to the plaintiff) A. B. had lawful right and title to the premises, and having such lawful right and title, entered and evicted him; without showing that he evicted the plaintiffby legal process, or what title A. B. had; the allegation, that the party having lawful right and title, entered, being tantamount to saying, that he entered by lawful right and title.” But in the case under consideration, this was not done, and perhaps could not have been done, since Harvey and Reed had no title to the land when the deed
The cause of action in the second paragraph of the complaint is the fraudulent representations, that the land v/as clear from all incumbrances, and that the note of Clark to Harper for five hundred and forty dollars would not be due and payable until the spring of 1870, and that the defendant concealed the fact that there was a lien on the land for the amount of the note, when in fact the land was incumbered by the mortgage mentioned in the first paragraph of the complaint, and the said note matured on the 1st day of November, 1869; and also that Harper, on the 18th day of December, 1869, sold and conveyed the land to said Harvey and Reed, so that the same was entirely lost to him, and he had to and did surrender the land to said purchasers on their paramount title. The mere fact that the land was incumbered, when it was represented that it was not incumbered, ■would not afford the plaintiff a substantial cause of action. It is the allegation of the sale of the land and the surrender of the possession of it which furnishes the right to sue, if there is any. But here the second paragraph of the.com
There are other questions argued by counsel, but after what we have already decided, we need not consider them.
The judgment is reversed, with costs, and the cause remanded, with instructions to sustain the demurrer to the paragraphs of the complaint.