192 Ind. 358 | Ind. | 1922
Appellant brought this action against appellees to recover $2,700 alleged to be due her from appellees on account of a certain real estate transaction. The complaint was in two paragraphs. The trial court sustained appellee’s separate and several demurrers to each paragraph for want of facts. Appellant refused to plead further, and judgment was rendered in favor of appellees. The ruling on-the demurrers to the complaint is assigned as error.
It appears from the first paragraph of the complaint that on March 15, 1913, appellant' was the owner of certain real estate in Newcastle, known as the “Powell Homestead,” and that appellees were the owners, by entireties, of certain real estate in Indianapolis which was incumbered by a mortgage for $7,200, maturing
The facts alleged in the second paragraph pertaining to the questions here for decision, are not materially different from those of the first paragraph, hence it will be unnecessary for us to refer to them.
To sustain the ruling of the trial court, appellees, in substance, first insist that as they held the title to the Indianapolis property by entireties, the contract for its sale and exchange signed only by the husband was void
The first case cited above was a suit to compel the specific performance of an executory contract for the amicable partition of certain land executed by a married woman in which her husband did not join, and he refused to join in the execution of a deed in compliance with the contract. The court held that an executory contract signed only by the wife “has no force, as she had no power to make such contract alone.”
The second case cited was a suit against a husband and wife for the specific performance of a parol contract for the sale of the wife’s land, and it was there held that a valid contract for the sale of the wife’s real estate must be in writing, and in which her husband must join, but as the contract was in parol, it was therefore void.
The third case was an action by a married woman to enforce payment of certain promissory notes given by the defendant to the plaintiff concurrently with a contract for the sale of certain real estate. The court held that, “A married woman has no power to incumber or convey her lands, except by a deed in which her husband shall join,” and that her contract alone to convey was void, and being void as against her, it was also void as against the other party to it.
None of these cases are in point, for in the instant case the contracts were fully executed by the conveyance of the property in which both the husband and the wife joined. Hence, if it be conceded that the contracts were within the statute of frauds, or within the statute forbidding a married woman to incumber or convey her real estate without her husband joining, they were taken out of the stat
It must be kept in mind that the subject-matter of the contract of March 15, was the Powell homestead and the Indianapolis property, and that the second contract, March 18, had to do with the Powell homestead and Lot 7, both in Newcastle. These contracts, under the facts alleged in each paragraph of the complaint, must be regarded as separate and distinct from each other. The second contract does not in any manner refer to the first. By this contract appellees treated the Powell homestead as belonging to them, and traded it back to appellant for Lot 7 and $3,300 in cash. The effect of this transaction was to leave the title to the Powell homestead in appellant. Appellees were then in no posi
Appellees, under a fair interpretation of the contract of March 15, were liable to pay, either to appellant or to the holder of the $7,200 .mortgage, $2,700 which was a part of the consideration for the exchange of properties under that contract. The facts alleged in each paragraph of the complaint clearly show that appellees have not discharged that obligation, but they say, and the complaint shows that concurrently with the execution of the deed by appellant for Lot 7, and the payment of $3,300 in cash to them, they executed a deed to appellant for the Indianapolis property subject to the $7,200 mortgage, and therefore they insist that the written contracts were merged in the deeds, and the deeds were the final determination of their rights. True, in the absence of fraud or mistake, the general rule is that all preliminary negotiations, whether in parol or in writing, ale merged in the deed. Smith v. McClain (1896), 146 Ind. 77, 87, 45 N. E. 41; Horner v. Lowe (1902), 159 Ind. 406, 64 N. E. 218; Burk v. Brown (1915), 58 Ind. App. 410, 108 N. E. 252. But this rule has a few exceptions, among which, as said in Hays v. Peck (1886), 107 Ind. 389, 8 N. E. 274: “It is settled by our decisions that the consideration of a deed may be shown by parol evidence, and that, for this purpose, it may be shown that the grantee verbally agreed, as part of the consideration, to pay an existing encumbrance.” This exception rests upon the theory that the agreement pertaining to the consideration for a deed precedes its execution. Hence, either party, when the consideration is stated in general terms, is permitted to show by parol or documentary evidence the true consideration for its execution. Lowry v. Downey (1898), 150 Ind. 364, 50 N. E. 79; Harvey v.
In the instant case it fairly appears that the appellees deeded the Indianapolis property to appellant pursuant to the contract of March 15. The consideration for. that deed, as stated in that contract, was the Powell homestead and the assumption by appellant of $4,500 of the $7,200 mortgage. The mortgage was not due for four or five years, and for aught appearing the holder thereof would not have accepted payment or part payment before its maturity. Consequently, it would naturally follow that the deed would be made subject to the mortgage, as was done. However, it may be argued that the first contract was merged in the second, and the deeds made thereafter must be regarded as the final action of the parties as fixing their rights and responsibilities. As to this contention, it will be noticed that the first contract was not merged in the second, for the reason that the second did not purport to embrace the Entire subject-matter of the first. Adams v. Adams (1903), 160 Ind. 61, 66 N. E. 153; McDonough v. Kane (1881), 75 Ind. 181. The contract of March 18 contains no language, nor do we find any facts in the complaint indicating that its final execution was intended by the parties as an adjustment of that part of the first contract whereby appellant was to assume $4,500 of the mortgage and loan appellees $6,000 on the Powell homestead, retaining therefrom $2,700. Undoubtedly the promised payment of $2,700 by appellees on the $7,200 mortgage was a part of the consideration for the exchange of their property for the Powell homestead. We must take the contracts and deeds as they are written, and all other material facts alleged in the complaint as true, as a basis for our conclusion on the question of whether or not appellees discharged their . agreement with appellant to pay the $2,700. Appel
Judgment reversed, with instructions to the trial court to overrule appellees’ demurrers to each paragraph of the complaint, and for further proceedings not inconsistent with this opinion.