83 Ind. 313 | Ind. | 1882
Complaint by the appellant against the appellees, as administrators of the estate of Reuben Dewart, upon two promissory notes, each for $300, alleged to have been made by the deceased. The circuit court overruled demurrers to the sixth and seventh paragraphs of the appellees’ answer ; and on these rulings the appellant has assigned error. These paragraphs are not essentially different; we, therefore, give the substance of the sixth only, which is to the effect following:
That Reuben Dewart, during his lifetime, entered into a contract with Mary E. Gibson and Harlan Gibson, for the purchase of the undivided one-sixth part of certain described real estate, at and for the price of $900; that they, the said Mary E. and Harlan Gibson, agreed to convey and represented that they were the owners in fee simple of said (interest in said) real estate, and the said Reuben believed that
This plea is clearly bad. It does not show whether or not the deed contained covenants which had been broken. If there had been a breach of covenant, it should have been so alleged, and a copy of the deed should have been filed with the paragraph. The presumption against the pleader may be indulged, and so the evidence shows the fact to have been, that the deed was a quitclaim merely. It is settled law here, as elsewhere, that in the absence of fraud, accident or mutual mistake, a failure of title to real estate so conveyed is no defence to an action for the purchase-money, and especially must this be so when the grantee continues to hold the deed, and has not been disturbed in the possession under it, and when it does not appear that a hostile or paramount claim has been asserted. See the following cases, all of which recognize, and many of which proceed upon, the doctrine stated: Laughery v. McLean, 14 Ind. 106; Small v. Reeves, 14 Ind. 163; Johnson v. Houghton, 19 Ind. 359; Terre Haute, etc., R. R. Co. v. Norman, 22 Ind. 63; Estep v. Estep, 23 Ind. 114; Coleman v. Hart, 25 Ind. 256; Shuler v. Hardin, 25 Ind. 386; McClerkin v. Sutton, 29 Ind. 407; Starkey v. Neese, 30 Ind.
In 1 Sugden on Vendors, supra, it is said: “"Generally speaking, a purchaser after the conveyance has no remedy excepting upon the covenants he has obtained, and though evicted for want of title, and, however fatally defective the title may be, if there is no fraudulent concealment on the part of the seller, the purchaser’s only remedy is under the covenants.”
In Eawle on Covenants, fourth edition, in the chapter entitled “The purchaser’s right at law to recover back or detain purchase-money,” after the introductory paragraph, discussing the distinctions between the rules governing the relations of the vendor and purchaser before and after execution of the deed, on page 566, it is said: “But when the contract has been consummated by the execution and delivery of the deed, a different rule comes in. Being thus consummated, any inconsistencies between the terms of the contract and the terms of the deed are, in general, to be governed solely by the latter, into which the former are merged, and the purchaser’s only right to relief from defects or encumbrances, whether at law or in equity, depends, in the absence of fraud, solely upon the covenants for title which he has received.”
That the plea under consideration does not show any fraud is evident. The vendors, it is alleged, represented that they owned and could convey one-sixth, and the appellant so be
It is claimed, however, that the plea shows a case of mutual mistake between the vendors and the vendee as to the quantity of interest which was conveyed. It is clear that the plea was not drawn, nor can it be maintained upon that theory. No mistake is alleged, and if any is inferable from what is alleged, it is not shown to have been a mistake of fact. The contrary not being averred, it may be presumed that one party knew as much concerning the title as the other, and if there was a mutual mistake between them it was not of fact, but of law. This conclusion accords with the evidence which shows that the lands in question were owned in part by the appellant and in part by the'said Mary E. Gibson, under titles derived from a common ancestor, and if either of them had the advantage of a superior knowledge of the facts, the appellant, being a man and the older, presumably had it. If there had been a material mistake of fact, the appellant, by taking the proper steps, might doubtless have been entitled to a rescission of the contract. Johnson v. Houghton, supra; Mar
Judgment reversed, with instructions to sustain the demurrers to the sixth and seventh paragraphs of answer.