29 Ind. 607 | Ind. | 1868
Underwood filed his complaint against Patterson and wife, Stalcup and Bird, for the' specific 'performance of-a contract for the conveyance of real estate. It is averred in the complaint that Underwood purchased of Patterson and wife lots numbers 19 and 20 in the town of Valene, Orange county, Indiana, for $504, and paid $300 thereof, and took a receipt therefor, as follows: “ Received of L. Underwood $300 cash, on payment on house.” (Sig’d) “ John J. Patterson. Valene, March 29,1866.” ■ That at the time of the purchase, the legal title to the lots was in Jesse L. Bell; that Underwood tendered to Patterson and wife the $204, and demanded a deed; that Bell and wife, at the request of Patterson and wife, executed and acknowledged a deed of conveyance in fee for the lots to Underwood, and handed it to Patterson; that some difficulty occurred between the parties about a pile of manure on the lots, and Patterson tore the deed in three pieces, and threw it on the floor; that Underwood picked up the pieces and produced the same, and made the deed a part of his complaint. That afterwards Patterson and ivife sold the lots to Stalcnp and Bird, who had full notice of Underwood’s equity. Patterson
Underwood purchased the lots of Patterson and wife on the 29th of March, 1866, for $500, and paid down $300, and agreed to pay the balance within ten days. Patterson was in possession at the time, but Bell had the legal title. By the terms of the contract of sale, Patterson was to cause Bell to convey the lots'to Underwood. Patterson executed and delivered to Underwood the receipt set forth in the complaint. At the request of Patterson and wife, Bell and wife signed and acknowledged a deed of conveyance in fee for the lots to Underioood, and placed the • same in the hands of Patterson for Underwood. At the time of the
I think the court below committed no error in overruling the demurrer to the complaint. The complaint shows a conveyance by Bell and wife, at the request of Patterson and wife, to Underwood for the lots, in fulfillment of a parol contract of sale. This was sufficient to take the case out of the statute of frauds.
The allegation in the complaint that the deed was executed, includes delivery, as delivery is an incident essential to the due execution of a deed. 4 Kent’s Com. 454. The
There is nothing in the second paragraph of the answer which is not embraced' by the general denial. The appellants relied below on the statute of frauds. The receipt is not a sufficient memorandum in writing to take the case out of the statute. It contains no promise to convey. There was no note or memorandum, therefore, in writing, of the contract. The case turns, however, upon the question whether the deed from Bell to Underwood was delivered to Patterson as an escrow ? At the time the division of this court was certified, the'writer of this was of the opinion that it- was so delivered; but upon mature consideration, the court is now satisfied that this position cannot be maintained. Blackstone,íii his commentaries, says: “A delivery may be either absolute, that is, to the party or grantee himself, or to a third person, to hold till some conditions be performed on the part of the grantee, in which last case it is not delivered as a deed, but as ah escrow, that is, as a scrowl or writing, which is. not to take effect as a deed until the conditions be performed, and then it is a deed to all intents and purposes.” Vol. 2, p. 307. If this writing, in the hands of Patterson, was an escrow, then, upon the performance by Underwood of the condition, it musthave become effective to all intents and purposes; but Underwood was not entitled to its possession until he paid Patterson the balance of the purchase money. Bell, then, only placed Patterson in a condition to comply with his contract with Underwood, and before such compliance Patterson tore up the writing, and refused to perform his contract, leaving Underwood to his
The judgment is reversed, with costs, and the cause remanded to said court, with directions to grant a new trial, and for further proceedings.