155 Ind. 548 | Ind. | 1900
— This case was transferred to this court by the order of the Appellate Court. The suit is for the recovery of a part of the consideration for the conveyance of a tract of land, and is prosecuted by the heirs at law of the deceased payee against the grantee named in the deed. A demurrer to the complaint was sustained, and judgment followed. The error assigned calls in question the ruling on the demurrer.
The facts stated in the complaint are these: December 2, 1885, Henry Weirick and his wife, Elizabeth, executed to the appellee, William FI. Weirick, a deed of general warranty for eighty acres of land, situated in Kosciusko county,
It is contended on behalf of the appellee that the' reservation of the life estate “with the absolute control of the said real estate, the same as if this conveyance had not been made, for and during the period of the natural life of the grantors, and of each of them,” is inconsistent with the grant contained in the instrument, and operates to defeat it. We think otherwise. The deed conveys a fee to the’ grantee, subject to a life estate in the grantors. During the existence of the life estate, the grantors could consistently, with the grant of a remainder in fee, continue to exercise absolute control over the land to the same extent as if the deed had not been made. Such control, so reserved in the deed, related to the use, enjoyment, and management of the
It is next argued that the $500 was payable to Ora P. on the condition that he should live until he became twenty-one years old, and that the contingency on which it was to become due and payable having failed by his death, the grantee is not liable to pay it at all. Cravens v. Eagle Cotton Mills, 120 Ind. 6, 16 Am. St. 298; Olds Wagon Works v. Coombs, 124 Ind. 62; Henry v. Thomas, Ex., 118 Ind. 23; 2 Rand, on Com. Paper, §113, p. 153; Marsh v. Wheeler, 2 Edwards 155; Harris v. Fly, 7 Paige, 421; Delavergne v. Dean, 45 How. 206; Knight v. Pottgeiser, 176 Ill. 368, 52 N. E. 934; Scofield v. Olcott, 120 Ill. 362, 11 N. E. 351; Carper v. Crowl, 149 Ill. 465, 36 N. E. 1040; and Heilman v. Heilman, 129 Ind. 59, are cited in support of this view.
The case is governed by the rules stated in Goss v. Nelson, 1 Burr. 226. In that case, the question depended entirely upon the validity of a promissory note given to an infant payable “when he (the infant) shall come of age”, and specifying the time when that was to be, viz., 12th of June, 1750. It was insisted, on behalf of the defendant, that the notes set forth in the declaration were not notes for the benefit of trade; nor was the money made certainly payable. The note was given to the plaintiff thirteen years before the time when he was to come of age; and it was not at all certain that he would live to attain that age. In order to have the effect of a promissory note within the statute, it ought to be a cash note and payable at all events. In deciding the case, Lord Mansfield said: “It would have been clearly good, if it had been made payable on the 12th of
Denison J., concurring said: “Here is no condition or uncertainty; but it is to be paid certainly, and at all events; only the time of payment is postponed.”
Eoster, J., concurring said: “A legacy may be given upon any terms, But upon a promissory note, the time of payment is only for the benefit of the debtor. Here, the time of payment is certainly fixed; and the particular day specified for payment of the money, being mentioned to be the day on which the infant is to come of age, makes no difference from what it would have been, if that circumstance had been omitted.”
“And they all agreed that that this was debitum in praesenti; though solvendum in futuro
The consideration for the conveyance of the land was the
The postponement of the time of payment was not conditional on Ora P. attaining the age of twenty-one years, but was to be made whether Ora P. lived or died. The date at which -Ora P. would become of age simply fixed the limit of the credit. The time when the $500 would become due was as certainly stated and as definitely ascertained as if August 1.6, 1897, had been inserted. Unless the appellee is liable to pay that sum to the heirs of Ora P., he will get the land for nothing. It cannot be said that the grantor contemplated such a result.
Judgment reversed, with instructions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.