95 Ind. 147 | Ind. | 1884
The complaint of the appellant is in three paragraphs. The first counts on a written contract, the second on an oral agreement, and the third is for the use and occupancy of the land. The fourth paragraph of the answer sets forth the same written contract as that counted on in the complaint, and as the controlling question in the case is the construction to be given this instrument, it is necessary to set it out, although it is of considerable length. It is as follows: “Be it witnessed by this memorandum of agreement, made this 20th day of June, 1878, by and between Samuel Ayers, Enos Harshman and Amos Heavilon, that for and in consideration of the sum of $1,500, cash in hand, to be paid to Samuel Ayers by said Amos Heavilon, said Samuel Ayers does hereby sell, assign and set over to said Amos Heavilon, all his right, title and interest in and to eight
The paragraph of the complaint which counts on this contract avers that the appellant in all things complied with his part; that the appellee, Heavilon, procured the land to be sold on his decree of foreclosure and purchased it; that appellant delivered possession of the land to the appellee. It is further averred that the appellee failed to comply with the terms of the contract, in that he refused to pay the purchase-money for the land as he had agreed, and refused to convey to Nancy J. Harshman the forty acres of land as stipulated, and has failed to pay any of the obligations named in the contract. Judgment is prayed for the purchase-money. The fourth paragraph of the answer, after setting forth the contract, alleges that the appellee purchased and occupied the land under the contract; that at the time of the purchase there were divers judgment and mortgage liens on the land which greatly exceeded the sum the appellee had agreed to pay for the land; that'among the liens was one in favor of the Farmers’ Bank for $2,200 which the appellant agreed to pay; that he did not pay it, nor any of the liens which he had agreed to pay; that immediately after making the contract appellee, with intention to fulfil it, procured a decree of foreclosure and sale of the land and became the purchaser for $11,816; that he paid Samuel Ayers $1,900 in cash; that on the last day of the year allowed for redemption, the Farmers’ Bank redeemed from his sale, and afterwards enforced the right acquired by such redemption by a sale of the lands, and that such sale divested all title of the appellant and appellee to the land.
The rule that the consideration of a contract may be shown by parol evidence is an elementary one, and applies in such a case as this. If it be true, as alleged, that the appellant agreed to pay the lien which finally swept away the property
A familiar rule in the construction of contracts is that the express mention of one thing implies the exclusion of all others, and applying this rule to the contract before us, it must be held that the mention of the things the appellee was to do implies that he was to do no others. If he was to do only the things specified, then the duty of doing all other things essential to protect the title devolved upon the appellant who had undertaken to vest title in the appellee. This leads to the conclusion that it was the duty of the former to pay off the liens which defeated title, and, having failed to do so, he can not recover the purchase-money for land which he was unable to convey.
Harshman was entitled to the debt secured by his mortgage, and the discharge of that debt yielded him nothing that he was not already entitled to, and it can not, therefore, be justly said that he got anything of value from Heavilon for which, either in law or equity, he should account. He got no more than he had a full legal right to receive, and this imposed upon him no duty to pay off liens which he had not contracted to remove.
In the absence of an agreement providing differently, the duty of paying off existing liens on land devolves on the grantor who undertakes to convey title; and if he would escape this duty he must show a contract devolving it upon the grantee. In this case there is no such contract. The ruling on the fourth paragraph of the answer was right. Judgment affirmed.