92 Ind. 49 | Ind. | 1883
It is alleged in the complaint of the appellees, that they are husband and wife; that the husband Francis M. Beck, owned land of the value of $15,000, personal property of the value of $4,000, and a judgment for $1,193; that he was indebted to a firm, of which the appellant was a member, in the sum of $2,500, and that on the 14th day of September, 1876, a verbal agreement was made between him and the appellant. This agreement is thus set forth in the complaint, viz.: “ In consideration that the plaintiffs would join in the execution of a deed, conveying the real estate aforesaid, and would transfer said personal property, and assign said claim on Joseph A. Beck, to him, said Landers, that he would hold the title to said land, so conveyed, appar
The question as to the amount of recovery does not arise upon a demurrer to a complaint; for, if the facts stated constitute a cause of action, the measure of damages is to be determined at a subsequent stage of the proceedings.
The complaint entitles the appellees to some relief because it sets forth a valid contract, shows performance on their part, and a breach on the part of appellant.
The title to the land did not pass from the appellees for the reason that the deed although absolute on its face was a mortgage, and a mortgage does not convey title. It creates a lien, but conveys no estate. It, therefore, appears on the face of the complaint, that the title still remained in appellees burdened with appellant’s lien, and that there was no agreement to convey land within the meaning ascribed by the courts to the statute of frauds. When the conveyance was executed, it became, according to the complaint, a mere mortgage, and the case is within the rule that a deed absolute on its face may be shown to be a mortgage.
Where all that part of a contract which is within the statute is performed, it is taken out of the statute and the contract may be enforced. In the case before us- the complaint shows a conveyance by deed to Landers of the land and his promise, yielded as a consideration for the conveyance, to perform certain acts, and this promise is enforceable. It would be so even though the appellees had not been the original owners of the land. Tinkler v. Swaynie, 71 Ind. 562; Reyman v. Mosher, 71 Ind. 596; Schenck v. Sithoff, 75 Ind. 485; Arnold v. Stephenson, 79 Ind. 126; Humphrey v. Fair, 79 Ind. 410; Felton v. Smith, 84 Ind. 485, 491; Stephenson v. Arnold, 89 Ind. 426; Butt v. Butt, 91 Ind. 305. We need not and do not decide to what relief the facts pleaded entitle the
The complaint avers that the appellees performed their contract in so far as they were not prevented by the appellant, and thus shows that they were not in default. Where performance is prevented by the act of the defendant, the plaintiff is excused from a full performance. But, in the present instance, it is made to appear that the appellant has disabled himself from reconveying the land according to his agreement, and appellees had, therefore, a right to bring an action without further performing their part of the contract.
A breach of the contract is shown by the averments which charge that the appellant had openly repudiated the contract, had failed to advance money as agreed, had failed to pay the debts he promised to discharge, and had conveyed the land he had agreed to hold as the security for his debt. What the measure of damages is can not, as we have seen, be determined upon the demurrer to the complaint.
The exceptions are in the record by a bill of exceptions filed at the term in which the verdict of the jury was returned. Where a bill of exceptions is filed at the term at which the verdict is rendered, it will be presumed, as to all the rulings on the'trial, that leave was obtained to reduce the exceptions to writing at the time the rulings were made. Pitzer v. Indianapolis, etc., R. W. Co., 80 Ind. 569; Boyce v. Graham, 91 Ind. 420; Calvert v. State, 91 Ind. 473.
In the special bill of exceptions filed during the term, it is stated that “the plaintiffs requested the’court to instruct the jury in writing, and as follows, which said request and the instructions asked by the plaintiffs are in the words and figures following,” and this statement is followed by the request and instructions. This sufficiently shows what the instructions were, and another statement shows 'that they were given as requested, and brings them into the record.
At the close of those instructions it is stated: “And to the giving of each of which of the said instructions said defend
In one of the instructions, given at the instance of the appellees, is the following statement: “And in determining the amount of damages you should charge Landers with the fair value of the land and of the personal property transferred to him, the rents and profits of the lands, if any, the profits, if any, from the stock raised and fed by the plaintiffs, and all the sums of money paid to him by the plaintiffs, or others, for their use, if any was so paid.” The court erred in assuming that personal property was transferred to Landers. It is a settled rule that instructions must not assume as true any facts where the evidence is conflicting, and in view -of the evidence in this case, it is clear that injury was done the appellant by the violation of this rule.
There was evidence tending to show that Landers did not receive a deed from the appellees until after Francis M. Beck had been adjudged a bankrupt, and his property transferred to an assignee, and it is urged that the sixth instruction given at the request of the appellees is, under this evidence, erroneous. That instruction reads as follows: “ If the plaintiffs have proved the allegations of their complaint by a preponderance of the evidence, it is no defence that the transfer of ■the property was prohibited by the bankrupt act, or was made to cheat, hinder or delay the creditors of Francis M. Beck, and in the absence of any other defence your finding should be for the plaintiffs.” We think the contention of the appellant must prevail.
The appellees were bound to show performance by the conveyance of title, and if the husband had no title when the conveyance was made, it is plain that he could not' perform his oral contract upon which this action rests. It must be borne in mind that the appellees ground their action upon this oral agreement, and aver performance by the conveyance of title,
It must also be kept in mind that the oral agreement, until carried into execution by a conveyance, was not enforceable. In holding the complaint good, we proceeded upon the ground that, according to its averments, so much of the contract as was within the statute of frauds had been executed by the conveyance of the land; but this is far from holding the oral agreement valid and enforceable at its inception. If it were not for the averment of performance by conveyance of the land, the oral agreement would have been clearly within the statute and not enforceable. Until the conveyance Landers acquired no enforceable contract rights, and if the appellees could not convey when the deed was finally executed, it is clear they could not, and did not, perform their part of the agreement.
Other questions are discussed, but as the ease must go back for another trial, we do not deem it necessary to pass upon them.
Judgment reversed.