131 Ind. 288 | Ind. | 1892
The appellee alleges, in the second paragraph of his complaint, that he is the nephew of Henry Puterbaugh, deceased, and had lived with him, as his son, for twenty-four years; that the appellant is the sole heir of the deceased, and claims to be the owner of the land described in the complaint. The appellee also avers that Henry Puterbaugh, being then the owner of the land, entered into a contract with the appellee, and that the contract was, in substance, this: “ The said Henry Puterbaugh, in consideration of love and affection, and for the further consideration that this plaintiff would assist with his money, time and labor, in the erection of a house, and barn upon the premises hei'eafte.r named, and would take possession, when marz-ied, and occupy the same, and make valuable and pei’manent improvements; that he, the said Henry Puterbaugh, would convey to him' the southeast quarter of Wapapashee Reserve. He, the said Henry Puterbaugh, further stipulated that the
“ That this plaintiff then and there accepted said proposition and assisted with his labor, time and money in the erection of said barn and house, and afterwards married, and in pursuance of said contract, and relying upon the same, moved upon said premises and took possession of the same, and under said contract, and relying upon the same, has ever since occupied and held possession of said lands, turning over one-half of the crops as agreed ; that he has made lasting and valuable improvements, besides said house and barn, since he has been in possession of said premises, in reliance upon said contract, in this : he has dug and walled a well, graded a lot, on which the house stands, made walks, built permanent and lasting fences, set out shade trees which are now growing thereon, and has changed the fences so as to separate the said eighty acres of land from the other lands of the said Henry Puterbaugh, all with the knowledge and consent of the said Henry Puterbaugh, and upon the faith of the aforesaid contract; that the said Henry Puterbaugh, during his lifetime, frequently promised to convey by deed to this plaintiff said tract of land in fee simple, but before he carried out said intention he suddenly and unexpectedly died, intestate, without having executed any deed of conveyance to this plaintiff for the premises; that the plaintiff has demanded a deed of the defendant, which she has refused, and refused to carry out the contract, and denies the contract; that the said defendant is now claiming title to the aforesaid lands claimed by the plaintiff, adverse to the title of this plaintiff; that said claim of title on the part of the defendant is without right and unlawful, and casts a cloud upon this plaintiff’s title.”
There was no such error in overruling the motion to make the complaint more specific as entitles the appellant to a re
There can be no doubt that payment of the purchase-price of land, whether in money or in property, is not sufficient to take an oral contract for the sale of land out of the statute of frauds. Felton v. Smith, 84 Ind. 485; Wallace v. Long, 105 Ind. 522; Green v. Groves, 109 Ind. 519; Edwards v. Estell, 48 Cal. 194. If the appellant’s counsel are right in asserting that taking possession of land pursuant to the terms of the oral contract has no greater effect than paying the agreed consideration in money, property or services, then this complaint is bad, because the contract is within the statute. But we think it clear that the position of counsel is untenable. It is quite plain that possession not taken under the contract would be wrongful, since no one can rightfully take possession of another’s land without his express or tacit consent. If there is a contract and the possession is rightful, the possession must be pursuant to the contract and in performance of it, for if it were not, it could not be rightful. Every contract for the conveyance of lands wherein provision is made for possession, implies that the possession shall be taken, if taken at all, under the contract. If it were otherwise, there could never be a rightful possession of land under an oral contract for its conveyance. The argument of counsel that, as possession was taken as part payment of the consideration, it is ineffectual, is plausible, but unsound. The possession of land under a contract is a pei’formance of the contract on the part of the purchaser, and must, of necessity, always be in some sense a payment
The law is that possession of the land embraced in the contract must be taken under its provisions, or the statute will defeat an enforcement of the contract. If, therefore, it be true that the complaint does not show that possession was taken under the contract, this action mustfail. But it is not true that possession was not so taken, for the complaint avers and the demurrer admits, that “ the plaintiff, relying upon the contract, moved upon said premises, and took possession of the same, and under said contract, and has ever since occupied and held possession of said' land.” The cases of Horn v. Godrick, 33 N. H. 32, Eckert v. Eckert, 3 Pa. R. 332, Poorman v. Kilgore, 2 Casey, 365, and Cox v. Cox, 2 Casey, 375, are not in point, for here there was a contract founded upon a valuable consideration for the conveyance of a particular parcel of land, and it was under this contract, and not because, of kinship, that the appellee entered into possession of the land and made improvements.
The fact that affection formed an element of the consid
Under the system which prevailed before the adoption of the code, it was generally held that a plaintiff seeking relief upon an oral contract for the sale of land must allege that he could not be compensated in damages resulting from a breach of the contract. But this was true only where purely equitable relief was sought, and sought in a court of chancery^ and the reason why such an averment was necessary was that without it a court of chancery had no jurisdiction. That reason does not exist where there is only one form of action, and where equity and law jurisdiction reside in the same court. We have examined many of our cases, and we do not find that there was such an averment in any complaint in an action to quiet title, or even in a suit for specific performance. But, as we shall presently show, this case is not one of exclusively equitable cognizance, but is a statutory action.
The question whether an action to quiet title is one that can be tried by a jury as a matter of right is presented by the record. The proper demand for a trial by the court was made, the demand refused, exception entered to the ruling, and the proper specification embodied in the motion for a new' trial. The court below did not submit the case to the jury merely to find facts as advisory, but submitted it to the jury to determine finally all questions of fact. If the action is one wherein a jury trial is demandable as a matter of right, the ruling was correct; if not, it was wrong. As we have
We preface our discussion of the question as to the mode of trial by affirming that this is not a suit for specific performance, but an action under the statute to quiet title. The plaintiff has title by virtue of his oral contract and the acts performed under it. All that he requires to á perfect legal title is the evidence of title. The title he has, the evidence— the deed — he has not. But as he is in possession under a valid and effective title, that title he may quiet. Barnes v. Union, etc., Tp., 91 Ind. 301; Heberd v. Wines, 105 Ind. 237 (243); Grissom v. Moore, 106 Ind. 296; Hyneman v. Roberts, 118 Ind. 137. It has, indeed, been held that an action for possession may be maintained by a party who has a clear equitable title. Burt v. Bowles, 69 Ind. 1; McNutt v. McNutt, 116 Ind. 545 (564); Stout v. Duncan, 87 Ind. 383 (388); Bibbler v. Walker, 69 Ind. 362 (371). Title may pass by an equitable estoppel. Pitcher v. Dove, 99 Ind. 175 (177), and cases cited. The principle upon which such a title as that asserted by appellee rests, is, at the foundation, that of equitable estoppel, inasmuch as the courts declare that where there is a contract, possession, and valuable improvements, the vendor will not be heard to aver that his vendee has no title because he has not the evidence of title required by the statute of frauds.
Prior to the statute of 1881, all civil actions were, as of right, triable by jury. Section 409, R. S. 1881. That statute reads thus : “ Issues of law and issues of fact in causes that, prior to the 18th day of June, 1852, were of exclusive equitable jurisdiction, shall be tried by the court; all other issues of fact in all other causes shall be triable as the same are now triable.” If we are governed by the words of the statute, it is quite clear that we must hold that the statutory action to quiet title is triable by a jury, since that action was not on the 18th day of June, 1852, one of “ exclusive equitable jurisdiction.” It is the creature of positive statute and not
The statute classes actions -for possessions and actions to quiet title together. The answer of general denial admits ail defences as well in one as in the other. Section 1055, R. S. 1881; O’Donahue v. Creager, 117 Ind. 372; Hogg v. Link, 90 Ind. 346. The rules of procedure are declared to be substantially the same in both. Section 1071, R. S. 1881. The statute providing who may maintain the actions applies to both of them, without so much as hinting a difference. Section 1073, R. S. 1881. A new trial of right is demandable in an action to quiet title, because it is placed under the same rules as an action to recover possession. Zimmerman v. Marchland, 23 Ind. 474; Hunter v. Chrisman, 70 Ind. 439; Miller v. Evansville, etc., Bank, 99 Ind. 272; Hammann v. Mink, 99 Ind. 279; Bisel v. Tucker, 121 Ind. 249. In the statutes and in the decisions the two statutory actions are uniformly treated as of the same class and as governed by similar rules. To attempt to divide the actions and bring them under diverse rules would be to oppose the express provisions of the statute and the steady current of judicial opinion.
■ The law as it comes from the law-makers does not divide the action to quiet title or the action to recover possession into subordinate classes; on the contrary, it plainly declares that there is one action of each class, but that both are governed by the same rules of procedure. If there is to be any subdivision into classes, it can only be done by judicial legislation, and that, as was said years ago, “is odious.” It can not, as it seems to us, be legally possible that the statutory action to recover possession, which is substantially the same as the common law action of ejectment, may be sep
Principle requires, as does the statute, that there should be a single action to quiet title, and not many actions triable in different modes. It is only by adherence to principle that confusion can be avoided. If it be conceded, as appellant’s counsel contend, that an action to quiet title may be tried by a jury if the title asserted is a legal one, but by the court if the title asserted is an equitable one, we will often have a single case tried in part by a jury and in part by a court. • This we say because it is establised law that a defendant may assert, by cross-complaint, an equitable title, although the plaintiff asserts a legal one, and in such a case, we should, if counsel are right, have the jury trying the issue as to the legal title, and the court trying the equitable title. But more than this, it might well happen that the verdict of the jury would be in favor of the one party and the finding of the court in favor of the other, and thus a conflict arise which could not be quelled by lawful means. There is even a more powerful reason for rejecting the appellant’s theory that different issues are triable by different tribunals, although only a single result can possibly be attained. That reason is this : The statute in express terms, and the court without the slightest break, has affirmed that all defences, equitable and legal, are admissible under the general denial, and, this being true, it is simply and absolutely impossible for the court to determine in a case where the general denial is filed how the case shall be tried, if the theory of the appellant is valid. It is beyond the power of the courts to give effect to the law as it is written in such
Thus far we have discussed the question without reference to the decided cases, and we now turn to them. The decisions directly upon the question explicitly declare that an action to quiet title is triable by jury. There can be no mistake as to what they decide, for their declarations are explicit and their language plain. Trittipo v. Morgan, 99 Ind. 269; Johnson v. Taylor, 106 Ind. 89. In other cases the doctrine of the cases cited has been fully asserted. Kitts v. Willson, 106 Ind. 147; Lamb v. Lamb, 105 Ind. 456; Deig v. Morehead, 110 Ind. 451. The decision in the case of Spencer v. Robbins, 106 Ind. 580, is not in conflict with the doctrine of the cases to which we have referred. There could be no conflict because there was no question in that case as to whether an action to quiet title was triable by a court or jury, for-the only question decided in that case which seems to bear upon the present — and that bears upon it very remotely, if it all — was that there was no error in refusing to submit a single question of fact to a jury in an action to quiet title, although it would have been error to refuse to submit the whole case to the jury had the proper request been made. It is true that it was said in the course of the
Our judgment is that the trial court did not err in submitting the case to a jury for trial.
The special verdict shows that the jury found in favor of the appellee upon the second paragraph of his complaint.
It is suggested, rather than asserted, that the verdict is outside of the issues, and we are referred to the eases of Boardman v. Griffin, 52 Ind. 101; Thomas v. Dale, 86 Ind. 435; Hasselman v. Carroll, 102 Ind. 153. If the assumption that the special verdict is entirely outside of the issues is correct, the appellant’s motion for judgment should have been sustained. We think it clear that where the material facts stated in a special verdict or special finding are wholly outside of the issues the defendant in such a case as this is entitled to judgment, for the plaintiff can only recover according to the allegations of his complaint. Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250. The question is properly presented by a motion for judgment on the verdict. Dixon v. Duke, 85 Ind. 434; Johnson v. Culver, 116 Ind. 278. But while we think that the question was appropriately presented by a motion for judgment on the special verdict, we do not think there was any error in overruling the motion. There was no error for the reason that the special verdict states such facts as sustain the substance of the issue, and it is a familiar elementary principle that it is sufficient if the substance of the issue be proved. It is not necessary that matters should be proved precisely as pleaded. The facts stated sustain the substance of the cause of action stated, and are fully within the issues.
There may be some conclusions and some evidence stated in the verdict, but, eliminating all such matters, there are substantive facts fully sufficient to authorize a judgment, and it is well settled that in such a case an appeal will be fruitless. Terre Haute, etc., R. R. Co. v. Brunker, 128 Ind. 542; Bartholomew v. Pierson, 112 Ind. 430; Hammann v. Mink, supra. The facts stated in the verdict are, so far as the material points of the cascare concerned, quite as strong as the allegations of the complaint, and what we have 'said in considering the sufficiency of that pleading fully ap
We can not disturb the verdict upon the evidence.
Judgment affirmed.