44 Ind. App. 262 | Ind. Ct. App. | 1909
Appellant sued appellees for specific performance of a contract for the sale of lands. The complaint is in four paragraphs. Demurrers to each paragraph were filed, which were sustained. Appellant refused to plead further, and the court rendered judgment on the pleadings.
Error is assigned upon the ruling of the court on the separate demurrers to the third and fourth paragraphs 'of complaint.
The third paragraph of the complaint in substance avers that appellant, being the owner of certain real estate in Illinois, and appellees, being the owners of certain real estate in Indiana, on September 19 met at Wheatfield, Indiana, and agreed to exchange their said properties; that the terms and conditions of said agreement were by the parties reduced to writing; “that the written agreement was entered into by and between the parties, a copy of which written agreement is filed herewith and marked ‘exhibit A/ and made a part of this paragraph; that a warranty deed was duly executed by appellant and his wife to appellees, conveying to them appellant’s said real estate, a copy of which deed is filed herewith and marked ‘exhibit B,’ and made a part of said paragraph; that a warranty deed was executed by appellees,
It is then averred that said contract, deeds, note and mortgage were deposited in escrow in the bank at Wheatfield, Indiana, and are still held by said bank. Other averments are then made showing performance of the various obligations set out in the contract of sale on the part of appellant, the failure of appellees to perform on their part, and their repudiation of the contract.
The fourth paragraph is the same as the third in its substantial averment, and presents no question which is not presented by the third. Exhibit A, being the contract for sale, is as follows:
“This agreement entered into this 19th day of September, 1906, by and between Minnie Schatzley and Charles Schatzley, of Jasper county, Indiana, parties of the first part, and Michael McCauley, of Cook county, Illinois, party of the second part, witnesseth: That the parties of the first part, for and in consideration of the covenants and agreements hereinafter specified to be kept and performed by the party of the second part, do hereby agree to convey or cause to be conveyed to said party of the second part, his heirs or assigns, by a good warranty deed, the following described property,*265 situated in Wheatfield township, Jasper county, Indiana, to wit: * * * And the party of the second part, for and in consideration of the covenants and agreements above specified to bo kept and performed by said parties of the first part, doth hereby agree to convey or cause to be conveyed to said parties of the first part, their heirs or assigns, by a good warranty deed, the following described property, situated in the city of Chicago, Cook county, Illinois, to wit: * *' * It is hereby further agreed and understood by and between the parties hereto, and as part of the consideration of this agreement, that each party hereto is to provide for the use of the other, within twenty days from the date hereof, proper abstracts of title to the property hereby agreed by the parties to be conveyed or caused to be conveyed, showing good and sufficient title to the same in the grantor. And it is further agreed that if any defects be found in the title lo the property the owner shall have time to cure such defects. Be it further understood by the parties hereto that this contract, together with the two deeds, the note and mortgage, shall be deposited in the bank of Wheatfield, to be kept by said bank until such time as the parties hereto shall, by themselves or their agent or attorneys, agree for said bank to turn over said deeds, note and all other papers connected with this deed to them. It is further agreed that the party of the second part shall execute to the parties of the first part a mortgage securing the payment of $3,000, and shall turn it over to the bank of Wheatfield by September 24, 1906. Possession to be given to each party by the other on or before March 1, 1907.”
The deeds, note and mortgage are in the usual form, the note running for three years at five per cent interest. It is contended on the part of appellees that the complaint is insufficient, for the reason that the written contract for the sale, which forms the basis of the suit, is too indefinite to support a decree, in that, while it specifies that appellant shall give a note and mortgage to appellees, it does not specify the time for which said note shall run, nor does it specify the interest such note shall bear, nor does it specify the land upon which said mortgage shall be given; also, that
The complaint was insufficient.
Judgment affirmed.