30 Ind. App. 549 | Ind. Ct. App. | 1903
Action to obtain specific performance of a contract to convey real estate. The complaint was filed November 28, 1900. December 8, 1900, appellant Kirk-ham conveyed the real estate to his co-appellant the Terre Haute Brewing Company. Eebruary 19, 1901, an amended complaint in two paragraphs was filed, the brewing company being made a party defendant. Special findings of fact were made and conclusions of law stated thereon to the effect that appellees were entitled to the specific performance of the agreement made by appellant Kirkham; that the brewing company, as his grantee, was bound by his agreement, and that a commissioner should be appointed to make such conveyance. Erom -a judgment in accordance with the conclusions of law, the defendants appeal. The sufficiency of each paragraph of the amended complaint ’is attacked for the first time in this court by assignment of error.
The specific objection made to each paragraph in argument is that a demand upon Kirkham for the execution of a deed in accordance with his contract is not averred to have been made prior to the institution of the suit. It is averred in each paragraph, in substantially the same language, that the plaintiff frequently demanded that a deed be made, and that the defendant has failed and refused so to do. The past tense is used. The pleading sjjeaks from the time of tire filing of the original complaint. Fleenor v. Taggart, 116 Ind. 189; School Town of Monticello v. Grant, 104 Ind. 168. There is not a total absence of any averment of a demand, but at the most a defective or inadequate averment. There are enough facts stated to bar another action. The assignment must therefore fail. City of South Bend v. Turner, 156 Ind. 418, 54 L. R. A. 396, 83 Am. St.
The facts found are, in substance: That on November 15, 1899, appellee William Moore and appellant Kirkham purchased of Jacob Eatic the west half of lot thirty-eight, in block four, in White & Hamilton’s original plat of the town of Shirley, Hancock county, Indiana, being the real estate described in the complaint; that the purchase-price thereof was $500, — $100 cash, $50 of which amount was paid by said Moore to Kirkham, who paid $100 to Eatic, and with the consent of Moore took a bond for the conveyance of real estate by warranty deed on payment of the balance of the purchase price within ten days; that the plaintiff paid to Kirkham on November 25, $200 as his half of the balance due on said lot, and Kirkham thereupon paid to Eatic $400, receiving a warranty deed for said real estate; that on said dayj and prior thereto, it was agreed between Kirkham and Moore that said deed should be made to Kirkham, and thereafter upon demand he would, by like conveyance, deed to William Moore’s wife, Nellie, 'appellee herein, an undivided half of said real estate; that on said day William Moore, at the request of Kirkham, and in pursuance of said purchase, took possession of said lot, and continuously thereafter “held open, notorious, and exclusive possession thereof as to all the world, except said Kirkham, claiming title to one-half part thereof as aforesaid” ; that the real estate “was a vacant lot with no fences or other improvements thereon; that Moore cleaned some rubbish off of it soon 'after the purchase, and leased it for a pasture lot, caused a temporary wire fence to be placed around the same by the person so using said lot, and since the institution of this suit has erected a small pen thereon for hogs, and refenced the lot.” The deed from Eatic
If the brewing company had notice of the appellees’ claim at the time of its purchase, it occupies no better position than its grantor. Notice, generally speaking, is an ultimate fact, and, as such, should be found in terms. Chicago, etc., R. Co. v. Fry, 131 Ind. 319, 325; Young v. Berger, 132 Ind. 530; Locke v. Merchants Nat. Bank, 66 Ind. 353, 364.
The finding under consideration does not in terms, state that the brewing company had notice of appellees’ claim. It is stated therein that it had “no actual knowledge” thereof. Knowledge and actual notice have been held to
Adopting the view of Mr. Pomeroy, as stated in the work cited, it is held that the finding is not equiválent to a finding that the said appellant did not have actual notice. If notice is affirmatively shoAvn it is because the facts set out relative thereto necessarily involve the existence of an essential or ultimate fact. Young v. Berger, supra.
It has been held by the Supreme Court of this State that actual notice of the outstanding equity is necessary to charge a purchaser therewith. Pennington v. Martin, 146 Ind. 635, 638.
Where one holds a contract for the purchase of land, and is in the open, visible, and exclusive possession of such land, subsequent purchasers must take notice of his right. Noyes v. Hall, 97 U. S. 34, 24 L. Ed. 909; Jeffersonville, etc., R. Co. v. Oyler, 82 Ind. 394; Glidewell v. Spaugh, 26 Ind. 319; Paul v. Connersville, etc., R. Co., 51 Ind. 527; Indiana, etc., R. Co. v. McBroom, 114 Ind. 198; Cincinnati, etc., R. Co. v. Smith, 127 Ind. 461; Smith v. Schweigerer, 129 Ind. 363; Dyer v. Eldridge, 136 Ind. 654; Ream v. Goslee, 21 Ind. App. 241; McLean v. Clapp, 141 U. S. 429, 35 L. Ed. 804, 12 Sup. Ct. 29; Kirby v. Tallmadge, 160 U. S. 379, 40 L. Ed. 463, 16 Sup. Ct. 349. The notice conveyed by such possession is referred to in the cases cited as constructive notice. Tuttle v. Churchman, 74 Ind. 311-314; Pomeroy, Eq. Jurisp. (2d ed.), §§594, 595, 596.
In Pennington v. Martin, supra, the possession of real estate was not a fact involved. The statement that actual notice is requisite to defeat the claim of a bona fide purchaser was evidently not intended to apply where such possession of real estate is relied upon, and, thus construed, there is no conflict. Legal notice by reason of possession depends upon the purchaser having been put upon inquiry and
The finding that Moore held open, notorious, and exclusive possession as to all the world except said Kirkham, claiming title to one-half part thereof, was evidently intended as a statement to the effect that he had possession of the entire lot under a claim of ownership to the undivided one-half thereof, and that his possession of the one-half that he did not claim to own was not adverse to Kirkham. As to the undivided one-half part thereof, Moore made and makes no claim. His possession of the entire premises was therefore that of a tenant in common, but it was sufficient to put the brewing company on inquiry; and had any reasonable inquiry been, made it could not have failed to learn that he was claiming ownership to an undivided one-half of the property. Construed with reference to the situation of the parties, the exception made in Kirkham’s favor is not regarded as sufficient to avoid the effect of Moore’s continued possession as otherwise stated. This being so, the court did not err in its conclusion upon this part of the case.
It is further insisted that under the complaint the demand for a deed was a necessary prerequisite to the suit, it being alleged that the contract relied upon was to convey upon demand. The action is shown to have been instituted on November 29. The finding is “that in the month of November the plaintiff demanded,” etc. The point, made is that the demand found might as well, under
Many questions of fact are discussed in the briefs. Appellees’ counsel confine themselves largely thereto. The evidence was in sharp conflict. Under the well settled rule it is not the function of this court to reweigh it. There is not only evidence tending to support the findings, but many of them might have been made much more decisive under if
The judgment is therefore affirmed.
