Linn v. BarkeyLinn v. Barkey
- Reporters:
- Before:
- Perkins
Bill by Barkey against Limi, fоr the specific performance of the following condition of a bond:
“ The condition of the above obligation is such: whereas the above bounden Solomon Linn has sold unto Jacob Bar-key a certain lot of land known and particularly described as follows: the east half of the south-west quarter of section number eleven, township number thirty-thrеe north, of range number three east, containing eighty acres, more or less, for 300 dollars, for which the said Barkey has paid the said Linn 200 dollars. Now, if the said Barkey does well and truly pay to the said Linn 100 dollar’s, said sum being in three promissory notes, one for 30, one for 50, and one for 20 dollars, then the said Linn, on reasonable request, at his proper cost, shall convey the above lot of land to the said Barkey by а good and indefeasible inheritance in fee simple, and by the said Linn so doing, then this obligation,” &c. “ Solomon Linn. Attest: James O. Parks.”
Barkey paid the three notes mentioned in the bond, and Linn tendered him a deed, with covenants as follows1: “That he will forever warrant and defend the same [the premises conveyed,] with all the aрpurtenances, unto said Barkey, his heirs and assigns, against the lawful claims of all persons whatever; excepting, however, the said grantors are not in any way liable for any claim of alimony or dower which the wife of Cyrus Cott, the grantor of the said grantors, may be entitled to,” &c.
*71This deed Barkey refused to accept, on the ground that it was not in compliance with the condition of the bond, that requiring, as he asserted, a deed with full covenants; and he filed his bill to procure’ a satisfactоry conveyance.
Linn defended, on the ground—
1. That the language of the bond did not require a deed with full covenants; and
2. That if it did, therе was a mistake in drafting it, rendering its requirements more comprehensive than was the agreement between the parties.
Upon the second point, a number of depositions were taken, which, however, the chancellor thought failed to establish the mistake in the bond, and, being of opinion that its terms required a dеed with full covenants, he decreed, on the submission of the cause to him, the executio such a deed.
We have no doubt as to the correctness of the cellor’s decree. A fair construction of the langui the bond, makes it demand a deed with full cov See Leonard v. Bates, 1 Blackf. 172, part of the o on p. 174, and Clark et al. v. Redman, same vol., p. 379. Dawson v. Shirley, 6 Blackf. 531.
The evidence as to the mistake in the bond, is very conflicting, and if the rule governing the action of this Court in cases at law, under such circumstances, is to рrevail in this, a case in chancery, of course we have nothing to do but affirm the conclusion of the Court below. That this rule is to prevail, we are told ‘by counsel for Barkey, on the authority of Calkins v. Evans et al., 5 Ind. R. 441; while, on the other hand, counsel for Linn cite us to Baker v. Leathers et al., a case in which the Supreme Court reversed the decree of the chancellor upon the weight of conflicting evidence, as establishing a different rule. 3 Ind. R. 558.
It is the settled practice in the English and Americcm chancery Courts, to decide causes upon appeal on the weight оf the evidence, without respect to the conclusion of the inferior Courts upon that evidencе. Gallion v. Mc Caslin, 1 Blackf. 91, and note 1, where the practice is *72stated, and authorities cited. Pell v. Forquar, 3 Blackf. 331,— Gafney v. Reeves, 6 Ind. R. 71, and cases there cited.
There are two very good reasons upon which this departure, in equity, from the rule in common law cаses may. be justified:
1. In equity practice, the evidence is mostly by depositions, and is all a necessary part of the record, without any bill of exceptions, while at law it is otherwise. See the cases abоve cited. Hence, as neither the inferior nor superior Court has an opportunity to observe thе manner of witnesses when testifying, each is equally prepared to judge of the weight of the testimony. At common law the inferior Court has the advantage.
2. Chancery causes are triable by the Court, without a jury. They аre not regarded as being embraced in the constitutional provision touching jury trials. Hence, the Suprеme Court can decide such causes upon their merits; while, should the Court assume so to decide cоmmon law cases, it would, in effect, be depriving the parties of the right of jury trial.
But, in the present case, should we act upon the chancery rule, and weigh the evidence, we can not reverse the deсree that has been rendered. The alleged mistake is not established with sufficient clearness to justify the Cоurt in altering the written instrument. The rule is, that it must be “ established beyond reasonable controversy,” “ made entirely plain,” that the written paper does not express the intent of the parties, before it can be аltered. 1 Story’s Eq., p. 173. In the language of this Court, in Bush v. Keller, 2 Ind. R. 69, a case closely resembling the present, “there should be, аt least, a strong case made to authorize such a decree.”
The agreement of the parties, then, requiring a deed with full covenants, and the plaintiff in the bill having performed his part of that agreemеnt, the proper remedy to be applied was to decree the execution of such a deed. That deed the defendant could make, though it might subject him to an action for a breach of covenant, should *73the plaintiff be disturbed in his possession. Such a risk he assumed when he made his contract.
We may properly remark, that the question of practice raised in this case becomes unimportant under the new code, which, assimilating law pleadings to those in chancery, assimilates chancery trials to those at law. In other words, in amalgamating the two systems, it has made all pleadings nearly chancery аnd all trials nearly law. Hence, bills of exception will probably be necessary, hereafter, as at law, in cases not regulated by statute, and the Supreme Court will apply the rule at law, in considering the evidence, in all cases.
Per Curiam.The decree is affirmed with costs.