89 Ind. 426 | Ind. | 1882
In the case of Arnold v. Stephenson, 79 Ind. 126, we held the appellee’s complaint sufficient, and that ruling controls the case throughout all its subsequent stages, so that, if we were disposed to change our decision, a settled principle would prevent us from doing so, We have not, however, the slightest reason to doubt the soundness of our former decision. The proposition there laid down is, that when that part of a contract is executed which is within the statute of frauds, all the remaining stipulations become valid and enforceable. This is good law. Day v. Wilson, 83 Ind. 463 (43 Am. R. 76); Schenck v. Sithof, 75 Ind. 485; Tinkler v. Swaynie, 71 Ind. 562; Reyman v. Mosher, 71 Ind. 596; Humphrey v. Fair, 79 Ind. 410; Curran v. Curran, 40 Ind. 473; Smith v. Felton, 85 Ind. 223; McOuat v. Cathcart, 84 Ind. 567; Browne Stat. Frauds, sec. 117. The complaint now before us is substantially the same as that passed upon in our former decision, and must be held sufficient.
There is much conflict in the 'evidence as to the character of the agreement between the parties, but we think there is •evidence fairly supporting the verdict. The testimony of Horace Heffren is very full, and is of itself sufficient to sup
The fact that a contract for the sale of lands provides for a conveyance by a third person does not prevent its enforcement by the vendor in case the conveyance bargained for is executed or tendered. The case is in principle the same as that of Schenok v. Sithoff, supra. It certainly can make no difference whether the title comes from the vendor himself or some third person, for if the purchaser gets title he is, to borrow the language used in the case cited, “ as much bound to pay the price as if a deed had been bargained for and made.”
Where a vendor offers to the purchaser or fully secures to him the title contracted for, he is entitled to recover the purchase-money, although the contract was by parol. The promise to pay the price is not within the statute, and when the agreement to convey is carried into effect recovery may be had on the promise, for in such a case that part of the contract within the statute is executed. This is the 'rule declared in the cases cited, and it is a just and equitable one. It would be inequitable to permit a purchaser to get the real estate he bargained for, and by the title for which he contracted, and then escape payment of the agreed price.
The appellee, in his own testimony, did not state the agreement between him and the appellaut. as favorably to himself as some of the other witnesses, and counsel insist that the case should be decided upon his own testimony. We do not think the jury were bound to act upon the appellee’s testimony, to
There are some circumstances seemingly inconsistent with the appellee’s theory of the case, but the jury had all the facts before them, and, with ample opportunity for securing full knowledge of the facts, found in favor of the appellee, and we can not interfere with their finding.
Judgment affirmed.
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