Raymond v. Pritchard

24 Ind. 318 | Ind. | 1865

Frazer, J.

Elizabeth Pritchard, the appellee, brought suit against Raymond and her own husband, alleging in her complaint that her husband refused to join with her as plaintiff. It appeared further by the complaint, that in 1863, Raymond had executed and delivered to her a title bond for a lot in Cambridge City. It was recited in the condition of the bond that Raymond had sold to the husband, Isaac Pritchard, lot 21, east of the river, for §300, which sum Isaac was to pay in work, according to an agreement between him and the obligor; that Isaac desired the lot to be conveyed to his -wife, Elizabeth, wherefore, upon payment of the §300, the obligor bound himself to make to Elizabeth a good title to the lot. It was alleged in the complaint that the agreement between the defendants was for carpenter work; that it was in their possession, and its terms were unknown to the plaintiff; that the husband, Isaac, had paid upon the lot about $250, and that the plaintiff was willing to pay the balance, in cash, whenever she could ascertain it; that both defendants declined to inform her of the amount, and that Raymond will not demand work to be done upon the contract.

The plaintiff prayed that the amount of the unpaid purchase money be ascertained, and that she be permitted to pay it into court, and that Raymond be compelled to convey the lot to her.

The first question presented here arises upon the overruling of separate demurrers by the defendants to the complaint, for the want of sufficient facts.

We suppose it will hardly be doubted that a husband may give real estate to his wife. This may be done, whether his title be an absolute fee, or merely a right in equity. If the facts recited in the condition of Raymond’s bond be true, such a gift was, in this case, executed by the husband to the wife. Nothing remained to be done by the husband to vest in the wife whatever interest he had in the lot, by virtue of his contract of purchase with Raymond. Raymond’s obligation to convey was transferred to the wife, and the instrument sued upoii thereupon given by Raymond directly to the wife. We know of no reason, ■ sufficient in law or equity, why he should not be compelled to perform it. He has received a large part of the price, and he is now under no obligation to convey to the husband. Does equity say that-he may keep tbe lot and tbe $250 also ? Tbe gift from tbe busband to tbe wife being executed, and tbe consideration for Baymond’s contract being a valuable one, tbe authorities cited by tbe appellant, to tbe effect that an executory contract which is voluntary, or founded on tbe consideration of blood or marriage only, will not be enforced in equity, do not seem to us to be applicable to tbe question in band. It is not sought to compel tbe husband to pay tbe unpaid purchase money. We think that tbe objection made to tbe complaint is not well taken. What bas been said is applicable to several other rulings of the court below, and renders it unnecessary to extend this opinion by making a particular reference to them.

After having made and executed tbe gift, as we have seen, it was not in tbe power of the busband afterward to revoke it. The third paragraph of tbe answer, alleging such revocation, was therefore bad, and a demurrer was properly sustained to it.

It is well settled that tbe consideration for a contract need not have moved from tbe party to whom tbe contract is made, and who seeks to enforce it, and, therefore, demurrers were properly sustained to tbe second and fifth paragraphs of tbe answer, each of which alleged that no consideration was paid by tbe plaintiff' for tbe lot.

Tbe fourth paragraph of tbe answer averred “that tbe defendant Isaac Pritchard is tbe real party in interest, and not said plaintiff.” To this a demurrer was sustained, and that ruling is assigned for error. This question bas been decided against tbe sufficiency of tbe answer. It should have alleged facts which would show, as a matter of law-, that Isaac Pritchard was tbe party who, alone, should have brought tbe suit. Garrison v. Clark, 11 Ind. 369; Swift v. Ellsworth, 10 Ind. 205; Lamson v. Falls, 6 id. 309.

Tbe appellants urge that tbe finding of tbe court was not sufficient to justify the judgment; but no such question was made below, and it is too late to present it for the first time in this court.

J. B. Julian, tr. A. Johnson and L. JDevelin, for appellants. N. S. Ballenger and N. 11. Johnson, for appellee.

The judgment is affirmed, with costs.