Cunningham v. Banta

2 Ind. 604 | Ind. | 1851

Perkins, J.

Bill in chancery, by Albert Banta against Stephen B. Cunningham, for an injunction restraining the assignment and collection of judgments at law. Perpetual injunction decreed below. The following is the case made:

On the 6th day of September, 1841, Banta made Cunningham a deed in fee simple, with usual covenants of warranty, for the consideration, as named in the deed, of 1,500 dollars, to the land described in this instrument, viz:

“Article of agreement between Albert Banta and Stephen B. Cunningham, both of the county of Randolph and state of Indiana, witnesséth, that the said Albert Banta has this day sold and deeded to Stephen B. Cunningham the following real estate, to-wit, the east half of the north west quarter of section ten, township nineteen, of range fourteen ; also, twenty acres off of the east half of the south west quarter of section three, township nineteen, range fourteen east; and, also, the said Banta assigned over, to said Cunningham, on this same day, a certain title-bond given to said Banta by John S. Forgey, binding himself to make a deed to said Banta for sixty-six and two-thirds acres of land off of the north end of the north west quarter of section ten, township nineteen, range fourteen east, by the said Banta complying with certain conditions. Now, the understanding of this article is such that the said Stephen B. •Cunningham has paid said Albert Banta the sum of seventy-one dollars and fifty cents on this day. Now, if the said Albert Banta will, on or before the first day of November next, pay back to the said Stephen B. Cunningham the said sum of seventy-one dollars and fifty cents, then and in that case the right of said land to be returned to said Banta by said Cunningham; but if said Banta fails to pay said sum of seventy-one dollars and fifty cents, then the right of said land is to remain in said Cunningham; and the said Stephen B. Cunningham, in that case, is to clear the said Banta of all the claims he, the said Cunningham, has against said Banta. In witness, &c. September 6, 1841. Albert Banta, [Seal.]

S. B. Cunningham, [Seal.]”

Banta failed to re-pay the 71 dollars and 50 cents. It appears that, at the time the sale above mentioned took place, Banta was over 1,400 dollars in debt, most of which was in judgments constituting a lien on said land, and about half of which was due to said Cunningham; that Cunningham purchased his farm, agreeing to give 1,500 dollars, to be made up of 71 dollars and 50 cents in cash, and the balance in said judgments and claims, which said Cunningham agreed to pay and satisfy; that Banta reserved the right of a re-conveyance of the land on refunding the 71 dollars and 50 cents by the day named, with the view to raising money and paying off said judgments, &c., himself; that it was a conditional sale with reception of a part of the purchase-money, and not the whole at the time, rather than a mortgage, no debt or loan being, or intended to be, secured thereby; that Cunningham did pay, or rather purchase said judgments not due to himself, taking an assignment of them to himself, or to some other person^ and that he is now using them as a means of selling said farm at sheriff’s sale as the property of said Banta, &c. See Bashor v. Cady, at the present term of this Court ⁽¹⁾. It is contended that parol evidence could not be given of the fact that Cunningham was to pay said judgments, they not being named in the instrument of writing above set out. But that instrument does not purport to set out the consideration in full that was to be paid for said land, nor the manner of its payment; and evidence showing what it was, and how it was to be paid, contradicts neither the deed nor the article of agreement, and was admissible. And see Allen v. Lee, Smith’s R. 12 ⁽²⁾.

T. J. Sample, for the plaintiff. D. Kilgore, for the defendant.

We think the evidence justifies the decree below, and it is affirmed with costs, &c.

Per Curiam.

flue decree is affirmed with costs.

(1) See ante, p. 582.

(2) See 1 Carter’s Ind. R. 58.