20 Ind. 118 | Ind. | 1863
The appellee, who was the plaintiff, sued James Torr and others, the heirs of William Torr, deceased, for the specific performance of a written contract for the sale
“Know all men by these presents, that I, Joseph Deem, have this day granted, bargained, sold and conveyed all my interest in a certain tract of land, described as follows, to-wit: the south-west quarter of section 35, in township 14, Putnam county, Indiana, (said quarter section being the property at this time of William Torr, Sr., of the above named county,) unto Mariah Torr, of the State and county above named, for the consideration of notes and money to the amount of 600 dollars. The said William Torr, being the lawful owner of the above named quarter of land, and designing, at his decease, that Joseph Deem should inherit his equal portion of said quarter of land, but in consequence of the notes and money given said Mariah Torr unto the said Joseph Deem, the said William Torr doth herein bind himself to make the title of the ao^llfeimed portion of land to Mariah Torr instead of Joseph Deem. In testimony whereof,” &c.
(Signed,) “Joseph Deem. [seal.]
“William Tore.” [seal.]
The second paragraph alleges that William Torr, at his death, left a son, James Torr, two daughters, Fanny Deem, the wife of Joseph Deem, and Elizabeth Coplinger, and seven grand children, the heirs of his deceased son,' William Torr, Jr., who, while in life, was the husband of the plaintiff; that, intending to give his three children each one-fourth of his property, and one-fourth to the widow and heirs of his deceased son, he, William, in his lifetime, advanced to James Torr an eighty acre tract of land, (in consideration of which the said James agreed, in writing, to make no future claim, as heir, to his father’s property,) and to Elizabeth Goplinger he advanced 800 dollars; which advancements left the quarter section herein described, which he intended to divide equally, giving one-half to the plaintiff and her children, and the other half to Fanny and Joseph Deem; that, on the 23d of
The third paragraph combines the statements, allegations, and averments of the first and second, making the written contract of James Torr and the alleged title-bond exhibits.
Against the validity of these pleadings it is argued that the bond, in suit, is void for .uncertainty, and does not therefore constitute a sufficient memorandum under the statute of frauds. Is this position correct? The bond, as we have seen, states very clearly the consideration of the sale, the title of William Torr, and his covenant to convey to the plaintiff; but the uncertainty is alleged to consist in its failure to identify the premises, with any intelligible description. Brown, in his treatise, says: “The subject matter of the defendant’s engagement must, of course, appear from the memorandum. Land, for instance, which is purported to be bargained for, must be so described that it may be identified. But the subject matter may, in any case, be identified by an external standard, and need not be in terms explained.” Thus to describe it as the vendor’s right, in a particular estate, or as the property which the vendor had at a previous time purchased from another party, is sufficient. Brown Stat. Frauds, sec. 385. In other words, where the description, so far as it goes, is consistent, but does not appear to be complete, it may be completed by extrinsic, parole evidence, provided a new description is not introduced into the body of the contract. 2 Phil. Ev. 4 Am. Ed. p. 682, et seq.; 1 Greenl. Ev. ss. 297, 298; Miller v. Travers, 4 Bing. 244; Maggart v. Chester, 4 Ind. 124;
“ I have this day sold my lot to Alexis Coquillard, on the plat in the town of South Bend, bn the plat of said town on the river bank. I have received value and will make the deed as soon as convenient. August 11th, 1835.
D. H. Colerick.”
The bill alleged that Colerick had, at the date of the contract, one lot, and but one, in said town, and that it was lot No. 94, for which a conveyance was sought. This Court held that the bill was sufficient, and that its averment of extrinsic facts, to explain and support the memorandum, was provable by parole evidence. In the case before us, the premises are thus designated: “All my, Joseph Deem’s, interest in the south-west quarter of section 35, in township 14, Putnam County, Indiana.” The equal portion of said quarter, which William Torr designed Joseph Deem should inherit at his, Torr’s decease. The contract, as we construe it, assumes that Deem had a prospective interest in the land, which was an equal portion of it, in expectancy. What was that interest? What portion of the land was his equal portion? To these inquiries there is not, on the face of the contract, any satisfactory response. The terms interest, and equal portion, in the connection in which they are used, are, no doubt, ambiguous; they are, however, consistent, and express the subject matter of the sale, but leave its identity uncertain. Now can such identity be shown by proof of extrinsic facts, evincing the intent of the parties, as to the exact quantity and description of the thing sold? This question, in view of the authorities to which we have referred, must receive an aflirma
But the appellants propound this question: How could the delivery of the possession of the south half be in pursuance of the contract, for Joseph Deem’s equal portion, when the averments of the complaint show that he neither had, nor could have had any such interest as described? We answer, William Torr, in his contract, says he intended that Joseph Deem should inherit the equal portion at his decease. The term inherit, in its legal signification, can not be properly applied to the prospective interest, as the same is referred to in the contract, because Joseph Deem could not himself, be an heir of William Torr, and of course, could not in his own right, take any thing from him by way of inheritance. But the averments are that Joseph Deem was, at the date of the contract, the husband of Fanny Deem, who was then the daughter of William Torr; that the purchase was made of Joseph and Fanny, and embraced all the title and interest, present and prospective, which they, as his, Ton’s heirs, had or might have in and to said quarter section. Now these averments do not, in our opinion, show that Joseph Deem neither had, nor could have had any such interest as described, but they do show that in right of his wife, who was the prospect
The several demurrers to the complaint having been overruled, and, as we think, correctly, the defendants, James Tbrr and Flizabeth Coplinger, filed their joint answer, and Fanny Deem answered separately. These several answers are alike in form and effect, and are in substance, as follows:
1. A denial. 2. It is untrue that the interest of Joseph Deem in said quarter section of land, was the south half thereof, or that the obligors, by their said bond, intended that William Torr should convey that half, to the plaintiff. But they aver that the then interest of Deem, in said quarter was in the north half, and that the bond, when it was executed, was by the plaintiff, as also by Torr and Deem, understood to be for the purpose of obliging William Torr, to con
Upon the issues thus formed, the cause was submitted to a jury, who having found specially, as to certain questions of fact propounded to them, rendered a general verdict for the plaintiff. Motion for a new trial denied, and judgment, &c.
The defendants, as has been seen, answered separately. To these separate answers there is but one reply, and hence it is insisted that the issues are left open. Can a plaintiff, by one reply, take issue with separate answers? The question thus raised, does not appear to have been presented in any form, to the lower Court, and is therefore not properly examinable in this Court. Peru, &c., R. R. Co. v. Dayton, 18 Ind. 326; Evey v. Smith, id. 461; Davis v. Engler, id. 312. Ve think, however, that although the defendants sever in their answers, the plaintiff may reply effectively by one general denial, but on that point we give no definite .opinion.
But the demurrer to the second paragraph of the reply, seems to be well taken. That paragraph directs itself to the entire answers, when it applies alone to but one special defence, and is on that account defective. Slaughter v. Detiney, 10 Ind. 103.
The causes for a new trial, so far as they are noticed in argument, are thus assigned: 1. The verdict is unsustained by the evidence. 2. The Court erred in permitting evidence to be given to the jury, over the defendants’ objections, as .appears by their bill of exceptions. 3. There was error in certain instruction given to jury. The second assignment is not
The Court, of its own motion, thus instructed the jury: “If you believe from the evidence that William Torr, deceased, at any time subsequent to the making of said bond, told the plaintiff to keep the bond; that it would be good for the south half of said quarter, and' that at or about the same time he made a deed to her for the north half of the quarter, and left the bond with her, to be by her kept and retained, as a contract for the south half, and upon which the Court would make her a title, and that she has so retained and kept the same, then you may find for the plaintiff’.” This instruction, it is insisted, told the jury that although the bond was intended by all the parties, for the north half; yet if William Torr told her, plaintiff, to keep it as a contract for the south half, they should find for the plaintiff, thereby in effect announcing to them as a principle of law, that a written contract about one subject matter, can be made by parole declarations to stand for or relate to another, and a different subject matter. We are not inclined to adopt this exposition. The Court, in what it tells the jury, does not assume that the bond was intended for the north half nor does it suppose a change of the original contract, but says, in effect, that if the facts ■ assumed are true, and the declarations of William Torr, as stated, were made, they explain the apparent ambiguity in the bond, apply it to the south half of the quarter, and render the defendants, as his heirs, liable for a conveyance of that half to the plaintiff.
But suppose the instruction to be, as construed by the appellants, and, therefore, incorrect, still they can not be allowed to complain, because, at their instance, the Court, as appears by the record,'subsequently gave this instruction: “The
The record shows that upon the trial the defendants, James Torr and Elizabeth Goplinger, to sustain the issues on their part, offered to introdu.ee their co-defendant, Joseph Deem, as a witness; but their offer was refused, and they excepted. This ruling is assigned for error, but the point involved in the exception does not appear to have been presented to the Court in the motion for a new trial, and can not, therefore, be considered by this Court. 15 Ind. 440, 441; 12 id. 675. Another error relied on by the appellants is, that Joseph Deem, the husband of Fanny Deem, was made a defendant, appeared and demurred to the complaint, but filed no answer, nor does he appear to have been defaulted. The failure to default was, doubtless, an irregularity, but not such an one as, in any degree, affected the merits of the controversy. The defendant was served with process, had failed to plead, and the Court had a right to enter judgment against him as upon a default. If the entry of a formal default was not made, it was amendable in the Court below, and will be re
The remaining inquiry relates to the evidence; does it sustain the verdict ? The jury found specially, “that William Torr, Joseph Deem and the plaintiff, understood and treated Deem as having an interest in the quarter section of land; that that interest was regarded as one half of the quarter; that the plaintiff paid Deem 650 dollars for that interest, and that, in consideration of said payment, William Torr agreed to convey to the plaintiff the south half of said quarter. That in January, 1849, the plaintiff, in pursuance of the contract, and with, his knowledge, consent and approval, took possession of said half quarter; that he lived with her seventeen years; and that, also, in pursuance of said contract, and with his assent, she made valuable and lasting improvements on the same half quarter of land.” This verdict, i'f it accords with the proofs, fully sustains the case made by the complaint. The evidence is voluminous, and we are not inclined to refer to it in detail. It is, however, conflicting, but upon examination of it we are of opinion that the conclusions of the jury ought not to be disturbed. Having thus decided that the verdict must be allowed to stand upon the evidence, the ruling of the Court upon the demurrer to the second paragraph of the reply, though erroneous, will not be allowed to reverse the judgment, especially as that reply does not appear to have had any effective bearing in the decision of the cause.
The judgment is affirmed, with costs.