120 Ind. 504 | Ind. | 1889
Lead Opinion
The appellee, who was the plaintiff below, filed her complaint in two paragraphs, to each of which separate demurrers were filed by the appellants, and the same being overruled by the court proper exceptions were taken. The case was thereafter put at issue by the filing of answers and replies, after which there was a jury trial, a special verdict returned and a judgment thereon for the appellee.
There ai-e several erx-ors assigned, but in view of the conclusion which we have reached as to the second and third errors it does not become necessax’y to notice the pthers.
The second error brings before us the action of the court in overruling the demurrer to the first paragraph of the complaint, and the third error the action of the court in ovexruling the demurrer to the second paragraph of the complaint.
The first paragraph alleges that the appellee is the legal owner of an undivided one-third of the real estate described ■therein, a wrongful withholding of the possession from her by the appellants, and demands judgment for possession.
The paragraph alleges a tenancy in common as between
The second paragraph is clearly bad, and the court below erred in overruling the demurrer thereto.
The following is a copy of the paragraph, omitting the formal parts: “ The plaintiff says that she is the wife of Peter Myers, and has been such for twenty years last past; that on the 30th day of September, 1870, the said Peter Myers was indebted to one John Holland in the sum of $2,341.50, and that on said day he executed a mortgage, the plaintiff joining, to secure said indebtedness upon the lands hereinafter described; that afterwards, to wit: on thé 3d day of May, 1872, being the owner thereof, Peter Myers executed a warranty deed to said John Holland, with this plaintiff joining, conveying to said John Holland the following described l’eal estate in said county of Lawrence and State of Indiana, to wit: the southwest quarter of section 25, town 5 north, of range 1 east; also, the northwest quarter of section 36, and the west half of the northeast quarter of section 36, town 5 north, of range 1 east; that the consideration for said conveyance was the said- sum of $2,341.50, and the further sum of $500 due the said Holland from the said Peter Myers; that the lands were of great value, to wit: the sum of $10,000; that it was also agreed that said deed should be in effect and operation a mortgage to secure .said indebtedness, and that as soon as such indebtedness was paid off and satisfied then the said John Holland was to redeed to this plaintiff ihe undivided one-third of said lands; and it was further agreed that the said Holland would, as soon as convenient thereafter, reduce said agreement to writing, and that said plaintiff and Peter Myers should retain possession of said lands until such re-conveyance was so made; but plaintiff avers that said John Holland fraudulently refused
The facts alleged, which are admitted by the demurrer to be true, created the relation of mortgagor and mortgagee as between the parties. Whether Holland held the legal title subject to redemption by the payment of the indebtedness, or was but a mere encumbrancer, is not material to the conclusion to which we have arrived.
At the time the conveyance was executed and the agreement made between Holland and the appellee, she held no present interest in or title to the real estate, but was possessed merely of a contingent estate, which, in case she survived her
The contract with Holland was not for the protection of her contingent estate, but was for a new estate — a definite and substantial interest in the land, and which was in no way •connected with, or dependent upon, her contingent estate. The conveyance of her contingent estate was the consideration for the new estate which Holland agreed.to convey to her.
If, after the conveyance to Holland, Peter Myers still held the legal title to the land, as he would have done if the instrument had been a mortgage in the ordinary form, then the appellee held her contingent estate intact except as encumbered by the said conveyance; and under the arrangement, immediately upon the execution of the quitclaim deed by her husband, the appellee should have received a deed conveying to her one-third of the real estate, in fee simple, and in case she survives her husband will be entitled to an additional one-third of the whole in fee simple, or for life, as the case may be.
That the contract in question falls within the statute, clause 4, section 4904, R. S. 1881, there can be no question, and there are no facts or circumstances averred to carry it without the statute.
It is claimed that as Holland agreed to reduce the agreement to writing at some convenient time in the future, and fraudulently refused to execute a deed after the payment of the indebtedness, the case is not within the statute. But it will be observed that there is no averment that Holland refused to reduce the agreement to writing, and so far as we are informed by the pleading, we can not say that he did not; and although it is averred that he refused to execute a conveyance, it is not averred that he was ever asked to do so.
As the time agreed upon for the execution of the agreement was uncertain, a demand was necessary to its enforce
Conceding that he was morally bound to execute a conveyance without a demand therefor, his failure so to do would not constitute a fraud. To so hold would be to abolish all distinction between fraud and breach of contract.
In Buchanan v. State, ex rel., 106 Ind. 251, it is held that an action may be maintained in some cases without a demand, and yet it will l’equire a demand to constitute the presumption of fraud. But had there been a demand made for the execution" of the agreement, and a refusal, and afterwards a demand for a deed, and a refusal, no presumption of fraud would have arisen ; at most, this would have shown an unwillingness to comply with the contract.
The presumption of fraud arises from facts or circumstances which tend to show bad faith, and which operate prejudicially on the rights of others.
This court has often held that it is not good pleading to charge fraud in general terms, but that the facts or circumstances constituting the fraud must be averred.
The question now under consideration was not involved in the case of Teague v. Fowler, 56 Ind. 569. The facts of that case were as follows: A. was a defaulting administrator, and the owner of two eighty-acre tracts of land. B. was one of his sureties, and, with the understanding and agreement that B. would pay certain of the debts owing by A. and convey to his wife the eighty-acre tract on which they resided, A. and his wife conveyed to B. the two eighty-acre tracts, and B. having refused to convey to the wife of A., an action was brought to compel a conveyance, and B. was compelled to perform his contract and execute the conveyance.
Under the facts of that case B. held the title as a trustee without an interest, and was the mere vehicle whereby the
It is well settled that trusts are not within the statute. Besides, section 2981, R. S. 1881, covered and should have ruled that case, and anything stated by the learned judge who wrote the opinion, touching any question not before the court, must be regarded as obiter dicta. Butcher v. Stultz, 60 Ind. 170, and Caress v. Foster, 62 Ind. 145, simply reiterate what has long been well settled as the law in this and other States, that a deed absolute on its face, given to secure an indebtedness, is but a mortgage, and that the character of the transaction may be shown by parol evidence.
In the case of Chambers v. Butcher, 82 Ind. 508, the facts and circumstances constituting the fraud were pleaded.
The following cases are in point and decisive of the question under consideration : Green v. Groves, 109 Ind. 519; Caylor v. Roe, 99 Ind. 1.
Counsel for the appellee insist, in their able brief) that in those cases the agreement was that the wife should become a purchaser of the husband’s lands after they had passed by judicial sale into the hands of the mortgagee, but with equal force it may be said that the appellee was to become a purchaser of an undivided one-third of her husband’s lands after Holland had acquired title thereto and the payment of her husband’s debt. See Box v. Stanford, 13 S. & M. 93 (51 Am. Dec. 142, and note); Wilson v. Ray, 13 Ind. 1.
Judgment reversed, with costs, and the court below is directed to sustain the demurrer to the second paragraph of the complaint.
Rehearing
On Petition foe a Reheaeino.
In the original opinion we omitted to make reference to the motion made to dismiss the appeal.
We need not repeat the nature of the action as its character fully appears in our original opinion. Where the action is one primarily for partition, an appeal will not lie from the interlocutory order of the court appointing commissioners to make partition between the parties. But in the case under consideration the order’s for partition and appointment of commissioners were mere incidents to the judgment and decree of the court as rendered.
The principal questions involved were the title to the real estate in controversy, the right to the possession thereof, and whether or not the appellee, Mrs. Myers, was entitled to recover damages. As to all of these principal questions the judgment of the court was a finality, and the appellant had the right of appeal.
We do not care to refer to any other question presented in the petition for a rehearing.
.The petition is overruled.