150 Ind. 364 | Ind. | 1898
Appellees filed in the lower court a complaint in two paragraphs against the appellant, for the recovery of money, and to enforce a vendor’s lien against the real estate described in the complaint. Appellant demurred to each of these paragraphs, which demurrer was overruled and exception duly reserved. There was an answer and reply filed by the parties respectively, and the issues as joined were tried by the court, and by request there was a special
The errors assigned are: (1) That the court erred in overruling the demurrer to each paragraph of the complaint; (2) that the court errred in its conclusions of law; (3) in overruling the motion for a new trial.
We need not stop to consider the sufficiency of the first paragraph of the complaint, as the special finding affirmatively discloses that the judgment rests wholly on the second paragraph, and under such circumstances, even though the insufficiency of the first paragraph be conceded, the overruling of the demurrer thereto would not be available error. Burkam v. Burk, 96 Ind. 270; Evansville, etc., R. R. Co. v. Maddux, 131 Ind. 571; Putt v. Putt, 119 Ind. 30; Elliott’s App. Proc., section 637.
The second paragraph of the complaint alleges facts which, in substance, are as follows: The plaintiffs on the 29th day of October, 1891, were the owners in fee simple of certain described real estate situated in the city of Kokomo, Howard county, Indiana, which on that day they sold and conveyed by warranty deed to the defendant, Irene Lowry, for the consideration of $7,700.00. That the plaintiffs were to receive in consideration for the conveyance of the said real estate to the defendant other real estate described in the complaint, situated in’ the city of Frankfort, in Clinton county, Indiana, the same to be conveyed to the plaintiff by the defendant, subject to a mortgage lien existing thereon for $1,800.00, held by one Zimmerman, and also to be subject to the taxes for 1891, but subject to no other liens. This agreement, it is averred, was reduced to writing, and signed
Counsel for appellant claim that the paragraph is not sufficient on demurrer for the reason that the parol agreement relied on was merged in the deed of conveyance executed by the appellees to appellant, and, as it does not appear that this deed provided for the payment by the appellant of the liens in controversy “as a part consideration of the purchase money,” therefore, it is said that the pleading is not sufficient to enforce a-vendor’s lien. Appellees contend, however, that they are not seeking to change the terms or provisions of any written contract or deed by a previous or contemporaneous parol agreement, but are only seeking to show thereby what the real and true consideration was which entered into the execution of the deed conveying their real estate to appellant. It may be said that the facts alleged in the second paragraph show that the transaction or deal .between the parties to this action was in the nature of an exchange of property. By the averments of the pleading it is disclosed that under the terms of the written contract, executed prior to the verbal agreement in dispute, appellees were to accept from appellant a deed of conveyance to her property
As a general rule, all preliminary negotiations between the parties leading up to the execution of a deed, with some éxceptions, are merged in the deed; but this rule, under our decisions, does not apply to the consideration, except where the instrument specifically sets forth the consideration.
In Hays v. Peck, supra, Elliott, J., speaking as the organ of this court, said: “It is an elementary doctrine that the consideration of a deed may be shown by parol, and it is impossible to give effect to this doctrine without permitting the parties to prove what agreement as to the consideration preceded the execution of the deed. The agreement as to the consideration necessarily precedes the execution of the deed, and the fact that the consideration was agreed upon some time prior to the delivery of the deed does not preclude the grantor from showing what constituted the consideration of the deed. To hold otherwise would be to run counter to the rudimentary doctrine that it is always competent to prove the actual consideration yielded for the conveyance of land.” See, also, Pickett v. Green, 120 Ind. 584; Nichols, etc., Co. v. Burch, 128 Ind. 324; Smith v. Mc
The second paragraph, of the complaint is sufficient, and there was no error in overruling the demurrer thereto.
The facts stated in the special finding fully support those set up in the second paragraph of the complaint, and sustain the trial court’s conclusions of law.
The evidence is not before us, for the reason that it does not appear from the record that the bill of exceptions said to contain it, was filed with the clerk, or in open court. This is essential. See act approved March 8, 1897 (Acts 1897, p. 244); Miller v. Evansville, etc., R. R. Co., 143 Ind. 570; Drake v. State, 145 Ind. 210.
The evidence not being in the record, we cannot consider nor review any questions depending thereon which appellant seeks to presept.
There being no available error, the judgment is affirmed.