47 Ind. App. 541 | Ind. Ct. App. | 1911
— Suit for money had and received. Judgment for appellee in the sum of $355.86, against appellants, from which this appeal is taken.
Errors assigned and argued are the overruling (1) of appellants’ motions for a new trial, and (2) their motion for judgment on the answers to the interrogatories, notwithstanding the general verdict.
A new trial was asked on the following grounds: (1) The “damages assessed are excessive;” (2) the verdict is not sustained by sufficient evidence and is contrary to law; (3) erroneously receiving and excluding certain testimony; (4) erroneously refusing certain instructions tendered and erroneously giving other instructions.
“Subject to all taxes falling due in the years 1906, 1907 and thereafter, and to the assessments thereon for gravel road purposes, * * * and subject to a lease thereon until March 1, 1907, * * * for the sum of $5,500, to be paid as follows: $400 cash, $600 on June 25, 1906, $850 on October 1, 1906, and $3,650 on January 1, 1907, with interest at six per cent per annum from date, for which several amounts notes are given. Said Marion Creek is to have possession of the premises from March 1, 1907, and is to pay all taxes and assessments accruing thereon. * * * Now if, on full and punctual payment of said notes, said Jacomiah H. Jackson and Emma Jackson shall, upon reasonable request, execute to said Marion Creek, his heirs or assigns, a good and sufficient general warranty deed, in fee simple, for said premises, then this obligation shall be void, otherwise to remain in full force. Said Jackson and Jackson are to deliver their abstract of title to said land with said deed. If said Marion Creek pays said notes by January 1, 1907, he shall be entitled to the rents for 1906.
Witness our hands and seals the day and year first above Avritten.
Jacomiah IT. Jackson.
Emma Jackson.
I accept the above bond on the terms therein named.
Marion Creek.”
At the time the bond was executed, it Avas agreed that the contract, notes and abstract of title should be placed in the Citizens National Bank of Kokomo, Indiana, to be held until all the notes were fully paid, at which time appellants Jackson and Jackson were to execute to appellee said warranty deed. The contract, notes and abstract were placed in the hands of W. C. Overton, who deposited them in accordance with the foregoing agreement.
In addition to the facts shown by the answers to the interrogatories there was some testimony tending to show that appellee before January 1, 1907, made objection to the title, on account of an alleged irregular deed and some old mortgages, but appellants contended that no such objection was made until late in January, 1907.
Appellee contends that on December 28, 1906, he offered to pay all the purchase money if appellant Jacomiah H. Jackson would fix the title. This was denied by appellants, who assert that the only excuse given at that time for not paying in full was that some persons had failed to pay appellee money due him, and he said he did not want to borrow and pay interest. The deed which was accepted and recorded was not introduced in evidence.
The principal question presented by this appeal is raised upon the admission and exclusion of evidence, upon the motion for judgment on the interrogatories, and upon the instructions given and refused by the court.
It is contended by appellants that the facts show that there was a special, express contract in writing between the parties in relation to the rents in controversy, and that where such contract is shown to exist there can be no recovery upon an implied obligation in a suit for money had and received.
On the other hand, it is contended by appellee that the decisions of our courts fully warrant such recovery.
In the case of Forester v. Forester, supra, the court held that the agreement under investigation was an express, and not a special, contract, but said at page 686: “There is no conflict between the common-law rule and the decisions in this State when properly construed, although there are certain expressions in some of them that indicate to the contrary. The rule is that the pleader may declare on an express, non-special contract, and recover upon proof of an implied promise. But he cannot declare on a special contract and recover upon proof of an implied promise, nor vice versa.”
In the case of Pence v. Beckman, supra, the suit was for the collection of an account for pasture, and plaintiff alleged that pasture was furnished at the special instance and request of defendant. The proof showed that the live stock was permitted to graze upon the lands of plaintiff, with the knowledge of both parties to the suit, but that nothing was ever said between them about price or payment.
It was contended that there was a fatal variance between the allegations of the complaint and the proof, and that the complaint declared upon an express, special contract, while the proof established an implied contract. The court held that there was no variance between the al
The doctrine stated in the case of Cranmer v. Graham, supra, was doubted in Lomax v. Bailey (1845), 7 Blackf. 599, and was, by implication, overruled in Epperly v. Bailey (1851), 3 Ind. 72; and in Adams v. Cosby (1874), 48 Ind. 153, the cases are reviewed, and the case of Cranmer v. Graham, supra, is held no longer to declare the law as applied in this State.
In the case of Kerstetter v. Raymond (1858), 10 Ind. 199, the court held that where there has been a special contract between the parties, a suit may be maintained in general assumpsit in certain instances: (1) Where the whole of the contract has been executed on the part of plaintiff, and payment is due him, the suit may be brought on the special contract, or in general assumpsit, and that in the latter case the measure of damages will be that fixed by the special contract. (2) If the special contract has been altered or deviated from in particulars, by common consent, general assumpsit will lie. Other exceptions to the general rule are also shown, which are not pertinent here.
The same case holds that if defendant desired to avail
In the case of Board, etc., v. Gibson, supra, our Supreme Court cites approvingly the case of Kerstetter v. Raymond, supra, and reiterates the exceptions to the general rule therein shown. See, also, Jenney Electric Co. v. Branham (1896), 145 Ind. 314, 33 L. R. A. 395; Schilling v. Templeton (1879), 66 Ind. 585.
The contention of appellants’ counsel, that this complaint cannot be sustained by proof of a special contract, seems to have some foundation in reason, but our courts, in applying the rule permitting a recovery upon a common count in assumpsit, have not generally recognized or maintained the distinction, and our code (§249 Burns 1908, §249 R. S. 1881) does not encourage such distinctions.
Without pointing out each particular question raised to
This instruction would lead the jury to believe that if a new contract was entered into, still some affirmative act of release on the part of appellee was necessary to relieve appellants from the duty of paying to him the rents, when they should have been told that in such situation he could not collect the rents unless the new contract so provided, or his rights to the rents under the old contract were in some appropriate way preserved, for while the Jacksons held the title the rents would belong to them, in the absence of a special agreement to the contrary. The new contract would supersede the old, unless otherwise provided.
The court gave the following instruction: “(7) The eoui*t instructs the jury that where one enters into a contract to convey real estate by a good and sufficient general warranty deed, the vendee has the right, not merely
The evidence tends to show, and the jury found, that appellee did not reject the title, but asked that some alleged irregularities be corrected, or a reduction made in the price sufficient to cover the expense of correcting them. The irregularities pointed out were back of the period covered by the twenty-year statute of limitations, and indicate that appellee was demanding an absolutely perfect record title. This was more than his contract called for. He was entitled to a good and marketable title, and this requirement is met by a title not open to reasonable objection. A fee-simple title may be acquired as well by prescription as by grant, devise or inheritance. Even an apparently perfect record title may be shown to be defective, and on this account is open to the possibility of objection, though in the absence of other evidence such objection would be unreasonable.
An “indubitable title” not “merely a title valid in fact,” as stated by the court, sets up a standard requiring a title open to no possible objection, however trivial, goes beyond the legal requirements, and in practical application approaches the impossible.
Appellants having tendered a good instruction on the subject of title by adverse possession, the court should have given it. It has been held that actual, open, continuous and uninterrupted adverse possession of real estate for more than twenty years under a claim of title will extinguish a title, legal except for such possession.
It has also been held that a title by adverse possession is sufficient on which to enforce the specific performance of a contract, and is a fee simple and perfect title.
In the case of Tewksbury v. Howard (1894), 138 Ind. 103, which was a suit for specific performance of a contract for the conveyance of real estate, the court said: “Title by adverse possession is as high as any known to the law. * * * A marketable title cannot be said to be more. * * * A marketable title is one not open to reasonable objection.” In Sims v. City of Frankfort (1881), 79 Ind. 446, the court said: “A title acquired by possession is a fee,” and is “the highest and most perfect title known to the law.” Rennert v. Shirk (1904), 163 Ind. 542; Dyer v. Eldridge (1894), 136 Ind. 654; Burr v. Smith (1899), 152 Ind. 469; Moore v. Hinkle (1898), 151 Ind. 343; Webb v. Rhodes (1902), 28 Ind. App. 393; Wood v. Ripley (1901), 27 Ind. App. 356.
Mandate Modified.