58 Ind. App. 268 | Ind. Ct. App. | 1915
Appellant sued appellee, the widow of George Rhonemus, deceased, to recover for the breach of the covenants contained in a deed executed by decedent in his lifetime and to enforce a resulting trust against appellee, the covenantor’s donee.
The complaint avers the execution of a warranty deed by George Rhonemus to Lewis Pence in January, 1872, whereby 26f acres of land m Grant County, Indiana, were conveyed to him. In February, 1882, said Lewis Pence conveyed the same land by warranty deed to appellant, so that the covenants contained in the Rhonemus deed were transmitted to him. Afterward in 1902, as the result of an action brought by one Long, who claimed and proved a paramount title to that of Rhonemus, appellant was evicted from the land, and he suffered damage thereby to the amount of $2,300. In January, 1903, and while the Long suit was pending in the Appellate • Court of Indiana, George Rhonemus purchased a tract of land, paying therefor the sum of $5,500 and caused it to be conveyed to appellee, and from that time until his death, he did not have sufficient property subject to execution, out of which appellant’s claim could be made. Appellee paid nothing for the land, but took it to defraud appellant, consequently she should be held to be a 'trustee for the payment of his claim. A general denial by appellee finally closed the issues. There was a judgment
The decisions in this and other states as to when a right of action upon covenants arises, are not wholly in accord. Some of our decisions hold that a right of action does not arise until eviction, provided the warrantor has been able-to transfer possession. Hooker v. Folsom (1853), 4 Ind. 90; Hannah v. Henderson (1853), 4 Ind. 174. Others hold that a warrantee has the right to recover nominal damages because of an outstanding claim against his title, prior to eviction, or assertion of such title. Mason v. Cooksey (1875), 51 Ind. 519; Mauzy v. Flint (1908), 42 Ind. App, 386, 83 N. E. 757. Perhaps a part of the apparent confusion in these cases may be removed on the hypothesis that the courts were considering in certain of them the liability which arises on a particular one of the several covenants which are embraced in the statutory covenant of warranty. However, our courts seem to have settled that the existence of a contingent liability, such as the liability of a warrantor who has conveyed land when the paramount title was in another
The evidence is such that the court was justified in holding that appellant had not made out his case. Judgment affirmed.
Note. — Reported in 108 N. E. 129: As to proof of fraud in fraudulent conveyances, see 11 Am. St. 757. As to the. question of whether secondary liability constitutes a debt or equity for purposes of a suit to avoid a conveyance as fraudulent as to creditors, see 47 L. R. A. (N. S.) 320. See, also, under (1) 20 Cyc. 757, 752; (2) 20 Cyc. 394, 761; (3) 11 Cyc. 1088; (4) 20 Cyc. 421; (5) 20 Cyc. 395, 752; (6) 20 Cyc. 394; (7) 11 Cyc. 1099; (8) 11 Cyc. 1127, 1105; (9) 11 Cyc. 1105; (10) 11 Cyc. 1158, 1181; (11) 11 Cyc. 1167.