50 Ind. App. 414 | Ind. Ct. App. | 1912
— Appellant brought this action to recover a balance due on a contract for the sale of real estate and on a duebill. Appellees appeared specially and filed an answer in abatement in two paragraphs, a demurrer to each of which was filed and overruled. A denial to each paragraph of said plea closed the issues, and a trial by the court resulted in a judgment for appellees. ■
The ruling of the court on the demurrers to each of the paragraphs of the plea in abatement presents the only question to be determined by this court. The complaint sets out the contract for the sale of the real estate and the due-bill. The substance of that part of the contract and duebill necessary to an understanding of the questions presented is as follows: Appellant in consideration of $1.00 and the covenants and agreements of appellees set out, grant unto appellees the option to purchase at any time on or before the 1st day of November, 1907, for the sum of $6,000.00 on the terms and conditions hereinafter set out, the real estate described in Allen County, Indiana. In ease of acceptance of such option, appellant was to convey by deed of general warranty to Abe Ackerman, of said county (one of the appellees) or to such other grantee as appellees might direct, a merchantable title in fee simple to said premises free of all incumbrances except as stipulated; such deed to be executed and delivered by appellant within ten days after the acceptance of the option to Old National Bank of Fort Wayne, to be by it held in escrow until appellees performed their part of the contract, whereupon such custodian was to surrender it to appellees; appellant to procure and deliver to appellees at Commercial Bank, in said city of Fort Wayne, an abstract of title to said premises showing title as aforesaid, all to the approval of appellees, the same to be submitted for examination within thirty days from appellees’ acceptance, of the option contract, appellant to cause all defects therein to be corrected within sixty days thereafter, and if not corrected by that time, the appellees were author
“DUEBILL.
Ligonier, Indiana, December 30th, 1907. * * * There will be due.from the undersigned Strauss Brothers & Company, to George W. Leehner, the sum of * * * ($5,000.00) * * *, as the balance of the purchase price for the real estate conveyed by Warranty Deed dated the 30th day of December, 1907, * * pursuant to contract by and between said grantor and his then wife, who has since died, and the undersigned, dated the 16th day of March, 1907. Said sum is to become due and payable * * * on or after the first day of May, 1908, * * * and when the said grantors shall have delivered to the undersigned an abstract of title to said premises showing merchantable title thereto free of . liens, ail to the approval of the attorneys for the undersigned and all in*418 accordance with, the provision of said contract which is referred to herein and made a part hereof. The undersigned reserve the right to cause all of the conditions of this due bill to be complied with and they are hereby authorized to pay the abstractors and attorneys for their services and expenses incurred on account thereof whether contracted for by the said payee or by the undersigned. All disbursements as provided for herein which shall be made by the undersigned are to be deducted from the amount of this duebill. That portion of said sum, if any, in excess of Two Hundred ($200) dollars, shall bear interest at the rate of 5 per cent per annum from the first day of March, 1908, until the aforesaid conditions of this duebill are complied with, provided, however, that such interest shall cease in any event at the expiration of one yehr. The residue of said sum shall not bear any interest. * * *
By Simon J. Strauss, a member of said firm.”
This duebill shows a number of indorsements of payments of various sums, the last of which bears date October 24, 1908, when $262.18 was paid thereon.
Appellant in his amended complaint avers that he had “fully performed and complied with the terms of said contract and duebill in the matters therein set forth; that he executed the deed of conveyance for said real-estate to the defendants which deed was accepted by said defendants and that said defendants have since sold and conveyed said property ® * that there is due plaintiff under said contract and duebill the sum of $1,206.46. ’ ’
The first paragraph of the plea in abatement, after averring that defendants appear specially to the amended complaint, alleges, in substance, that appellant ought not to maintain his action, because, he executed the “option contract, ’ ’ which is also filed as an exhibit with said plea; that pursuant to said option appellees purchased said real estate from appellant, and that he conveyed the same to Abe Ackerman; that (we quote) “on the duebill herein sued upon there is to be paid plaintiff * * * ($1,266.92) but de
Then the following averments are given: ‘ ‘ That because of the institution of said action by said Thomas Greer, administrator, the manner of the settlement thereof and the other suits brought affecting said real estate defendants’ attorney insisted that in order to cure any defects in the conveyance hy said Patrick Malloy, to plaintiff and by reason of similar claims, which might be asserted by the heirs of said Patrick Malloy, deceased, who were unknown, it would be necessary to bring action against all such heirs of said Patrick Malloy, whose names and residences were unknown, and thereupon plaintiff employed his attorney, Charles Kuhne, to bring action in the name of Thomas P. Stack, grantee of said Abe Ackerman, ® * * against all the heirs, unknown spouses, * * * and all parties appearing of record who might have any claim against said
Tested by the rule governing pleadings generally, this paragraph of answer would be open to criticism, to say the least, in that some of its essential averments are uncertain, and are made by way of recital and conclusion, and when tested by the rules above announced governing pleas of this character, it is fatally defective, in that it is not ‘! certain to every intent,” and falls far short of containing “the utmost fullness and particularity of statement, as well as the highest attainable accuracy and precision, leaving, on the one hand nothing tobe supplied by intendment or construction, and on the other no supposable special answer unobviated.”
The complaint to which this answer is addressed avers
The option contract provided that in ease of default on appellant’s part in the performance of such contract, the custodian should hold all of such purchase money, thereafter paid by appellees, as indemnity to secure such performance. The duebill provided that appellees might withhold the payment of all of the $5,000 until abstract was furnished. In view of said conditions in the option contract and the duebill, the acceptance by appellees of the deed and their conveyance of the real estate, to another, and the payment by appellees of all of the $5,000 except $1,266.92, the averment in the answer that appellees’ attorneys insisted that, in order to cure any defects in the conveyance to appellant from his grantor, a suit should be filed to quiet title, and that pursuant to this request appellant authorized his attorney to bring such suit in the name of appellees’ grantee, the bringing of said suit and the quieting of title are each and all facts strongly suggestive, at least, of a waiver of said condition, postponing payment until abstract was furnished, and, under Gertain conditions, might be conclusive thereof.'
It is nowhere averred in this answer when the abstract wdiich appellees in person or by their attorneys refused to approve was furnished for examination under said option contract, whether before or after appellees’ acceptance of the deed, and the conveyance of the land by appellees, or
The judgment is therefore reversed, with instructions to the court below to sustain the demurrer to each of the paragraphs of the answer in abatement, and for such further proceedings as may be consistent with this opinion.
Note. — Reported in 98 N. E. 444. See, also, under (1, 2) 31 Cyc. 179; (3) 39 Cyc. 1292; (4) 39 Cyc. 1296; (5) 9 Cyc. 590. As to options to purchase land, also, as to time fixed for payment, see 104 Am. St. 271, 275. As to rule favoring the grantee of a deed in preference to the grantor, see 59 Am. Dec. 548.