36 Ind. App. 486 | Ind. Ct. App. | 1905
Lead Opinion
The complaint is in two paragraphs. The first alleges that the appellant was the owner of certain real estate in Monroe county, and that she entered into a contract with appellee, by which she agreed to convey to him a certain part of said real estate described in the complaint. It alleges that the contract was in writing, and sets forth a copy of said written contract, which is as follows: “August 31, 1903. Deceived of Ira E. Stansifer $50 in payment for the land north and west of the grave
Appellant’s demurrer to the complaint was overruled. She then answered: (1) By general denial; (2) by special answer, alleging that appellant agreed to sell appellee certain real estate which was north and west of a certain graveyard, and east of a fence, and south of a certain highway, and being about two acres less than the real estate described in the complaint; that said real estate was to be paid for at the rate of $12 per acre, and was tó be surveyed in order to determine the amount, which was after-wards surveyed by the parties, and is the same real estate described in the answer; that appellee paid $50, and was to pay the remainder upon the execution and delivery of a deed by appellant; that appellee directed the deed • to be made to himself and Eestus Thresher; that in pursuance of said agreement and request appellant made and tendered a deed for the real estate described in the answer, naming appellee and Eestus Thresher as grantees, but that appellee refused to accept said deed, and demanded that other land which appellant did not sell should be included therein; that appellee did not take possession of said real estate; that appellant never consented that he should take possession until there was a full compliance with the terms of said sale; that said agreement was in parol. Appellee’s demurrer to the second paragraph of the answer was sustained. Upon the trial the court found for the plaintiff,
Did the court err in overruling appellant’s motion' for a new trial ? There is no question as to the agreement to sell the land. Was it in parol or in writing? The receipt already appears. “A receipt signed by the vendor of real estate for part of the purchase money may constitute a sufficient memorandum of sale.” Waterman, Spec. Perf., §§235-237. In Tewksbury v. Howard (1894), 138 Ind. 103, the court say: “The rule often recognized in this State is, that where the description given is consistent, but incomplete, and its completion does not require the contradiction or alteration of that given, nor that a new description should be introduced, parol evidence may be received to complete the description;” citing a number of cases. See, also, Maris v. Masters (1903), 31 Ind. App. 235.
Interpreting the decisions — and they are numerous— liberally in favor-of appellant, there may be some question as to the sufficiency of the receipt alone to take the transaction out of the statute of frauds. It is, however, a settled rule that where a vendor takes possession under a parol contract for the conveyance of lands, resting upon a valuable consideration, and has made permanent and valuable improvements, specific performance of the contract will be enforced. Swales v. Jackson (1890), 126 Ind. 282. There is evidence in the record
Judgment affirmed.
Concurrence Opinion
Concurring Opinions. '
The key to the cemetery was thereupon turned over by appellant to a person designated by appellee. Appellant set posts for a division fence, extending the same from the
The appellant testified that the proposition was to sell “to the fence,” which was within about two rods of the line. Appellee claimed to have purchased to the line. The description contained in the instrument above set out was susceptible of ascertainment by a surveyor, and therefore sufficient. Thain v. Rudisill (1890), 126 Ind. 272; Trentman v. Neff (1890), 124 Ind. 503; Waterman, Spec. Perf., §§235, 237, 238.
“The land north and west of the graveyard” referred to the land so situated and owned by the appellant. Its amount was a matter of measurement and computation, the purchase price being determinable with reference to such amount, and the judgment of the trial court should therefore be affirmed. I do not, however, regard the evidence as sufficient to show a part performance to take the case out of the statute of frauds.