31 Ind. App. 512 | Ind. Ct. App. | 1903
Transferred from the Supreme Court under the act of March 12, 1901. Suit for the specific performance of a contract to sell land. In appellee’s complaint it is averred that in January, 1888, appellant owned a certain lot, which appellee, by a written contract, purchased, and which appellant agreed to convey to appellee. The contract, made a part of the complaint, provides that appellant “hereby leases and lets unto” appellee the lot described “at the monthly rent of the repairs and $3 cash rent, payable monthly on the 14th day of each month.” Appellant “further agrees to make to the order of Amanda Wright a warranty deed for said property when she pays $100 on the property and gives a note and mortgage for $130 at eight por cent, in advance, considering the property worth $230, and the $3 or other sums paid every month, payments on the $230 to be calculated as if the $230 were to draw eight per cent, interest payable monthly in advance from date.” It was also agreed that appellee should have no right to hold possession unless she kept the property in good repair and paid the rent in advance, and, if she failed to pay the $3 per month, appellant should have the right to enter and take possession only after giving thirty days’ written notice, unless the rent was paid before the expiration of the thirty days. It is further averred that appellee took possession under the contract, and made lasting and valuable improvements; that she paid the $100 according to the terms of the contract; that she had paid him a sum far in excess of that amount, and has performed all the covenants incumbent upon her under the contract; that she has repeatedly demanded that appellant execute to her a warranty deed to the lot, which he has refused to do; that in December, 1900, appellant, during the tem
The complaint is not as specific in some particulars as it should be, but, as it does not wholly omit any material averment, such defects may be, and in this case are, cured by the special finding of facts.
The complaint is not defective for want of an averment that appellee made or offered to make the note and mortgage. The execution of the deed and the execution of the note and mortgage were concurrent acts. But, when the ■agreed amount was paid, the next act to be done was the making of the deed. When appellant refused to make the deed, he repudiated the contract so far as he could. After he had refused to make the deed, it would have been a useless formality to tender the note and mortgage. In Parker v. McAllister, 14 Ind. 12—a similar case — the court said: “By the terms of the contract, the payment of the first instalment was to precede the execution of the deed by the vendor. The making of the deed was the next thing in order; for regularly no mortgage could be made by the vendee until the vendor had passed the title to him. As the vendor refused to accept the money, and, so far as he could, repudiated the contract, the tender of a mortgage could not be made; for the vendee had no legal title to the land to mortgage.” See Souffrain v. McDonald, 27 Ind. 269; Turner v. Parry, 27 Ind. 163; Blair v. Hamilton, 48 Ind. 32; Burns v. Fox, 113 Ind. 205; Horner v. Clark, 27 Ind. App. 6.
The special findings show the execution of the written contract; that immediately after the execution of the con
It is argued at some length that the findings are not sustained hy sufficient .evidence; that the court erred in its conclusions of law and in overruling certain motions to modify the judgment. The findings hy the court are within the issues presented hy the pleadings, and upon a careful consideration of all the evidence it is manifest that the findings are supported hy the evidence. The trial court was the exclusive judge of the credibility of the witnesses. No good purpose would he subserved hy a discussion of the evidence. There is evidence in the record to support the findings of fact made hy the court.
There is no error of which appellant can complain in the conclusions of law upon the facts found. Appellee, under the facts found, had paid the full purchase price of the lot, and was entitled to a deed when she first made a demand for it. The conclusions of law are right upon the facts found.
Appellant’s several motions to modify the judgment were properly overruled. The judgment rendered is the only judgment authorized hy the conclusions of law. The motions sought only such changes in the judgment as would have made it not in accordance with the conclusions of law. If a judgment conforms to the conclusions of law a motion to modify the judgment can not prevail. The statute (§560 Burns 1901) provides that in a special finding the court shall first state the facts in writing, and then the conclusions of law upon them, “and judgment shall he entered accordingly.” Nading v. Elliott, 137 Ind. 261; Smith v. McKean, 99 Ind. 101.