9 Ind. App. 558 | Ind. Ct. App. | 1894
The appellees, who are husband and wife, sued the appellant, alleging, in substance, that they purchased of him certain real estate in Morgan county, Indiana, which was conveyed by appellant to the appellee, Hannah P. Frybarger, by warranty deed; that at the time of the purchase the real estate was in the possession of a tenant, hut that the appellant, to induce the
It is. then alleged that they failed to get possession, and by reason thereof were put to great expense, etc.
The complaint is in two paragraphs, to each of which a demurrer was filed and overruled.
The appellant then filed an answer in two paragraphs, the first being a general denial, and the second, in substance, that at the time of the execution of the deed the appellees were well informed and knew that the real estate conveyed was in the possession of a tenant, and that the appellee Hannah P. Frybarger accepted the deed with the existing tenancy, and with the distinct understanding and agreement that they would themseves undertake getting possession, and released appellant from any and all covenants in his deed for possession thereunder.
To the second paragraph of answer, the appellees replied by general denial.
The cause was submitted to the court for trial, and a finding for the appellees in the sum of $230, a motion for a new trial filed by appellant and overruled by the court, and judgment rendered for appellees on the finding.
Three errors are assigned on this appeal, namely:
First. That the court erred in overruling the demurrer to the first paragraph of the complaint.
Second. That the court erred in overruling the demurrer to the second paragraph of the complaint.
The appellant insists that neither paragraph of the complaint is sufficient, for the reason that a copy of the deed, for a breach of the covenants of which a recovery is sought, is not filed with the complaint.
In actions based upon a written instrument, the rule is that it must either be filed as an exhibit to the complaint or made part of it by incorporation. Campbell v. Routt, Admr., 42 Ind. 410; Brown v. State, ex rel., 44 Ind. 222; Overly v. Tipton, Admr., 68 Ind. 410; Wadkins v. Hill, 106 Ind. 543; Old v. Mohler, 122 Ind. 594.
If this complaint is to be construed as an action to recover for a breach of the covenants in the deed of conveyance, appellant’s contention must prevail, because no copy of the deed is filed with, or incorporated in, the complaint.
Again, appellant insists that the facts alleged show that the appellee knew of the tenancy and the right of possession in the tenant, and, therefore, they purchased subject thereto. In support of this contention, the case of Kellum v. Berkshire Life Ins. Co., 101 Ind. 455, is cited.
With the exception of the allegations in the complaint under consideration, that at the time of the purchase the appellant, to induce the appellees to make the purchase, represented that he had made an agreement with the tenant in possession, whereby appellant could give appellees immediate and peaceable possession; that these representations were false, and known by appellant to be false when he made them, but that appellees, relying upon the verity thereof, made the purchase, the facts in that case and this one are very similar.
In that case the court says: “At the common law, after attornment, the occupancy of the tenant could not
The complaint, however, is not predicated upon a breach of any covenant in the deed of conveyance, but is for a breach of the extraneous contract made by appellant to give appellees immediate possession. The only insistence of appellant relative to the sufficiency of the facts alleged to constitute a cause of action, is that the appellees being cognizant of the tenancy, and the , extent thereof, at the time of purchasing, there was no breach of the covenants in the deed, hence the demurrers should have been sustained.
As heretofore stated, if the contention of counsel for appellant, as to the theory of the complaint, is correct,
It is next urged that the court erred in overruling the motion for a new trial, for the reason that the evidence discloses that the alleged agreement to give immediate possession was made prior to the deed of conveyance, hence was merged in the latter.
It is a, well settled proposition of law that all prior negotiations or contracts are merged in the subsequent contract or deed between the same parties, embracing the same subject-matter; that parol agreements relative to the sale of lands are presumed to be merged in the deed. Chapman v. Long, 10 Ind. 465; Turner v. Cool, 23 Ind. 56; Coleman v. Hart, 25 Ind. 256.
By this, it is not understood that an agreement, sep- ■ arate and distinct from the covenants of the deed, may not he entered into and enforced. A grantor, by his covenants of warranty, agrees to give the grantee possession of the premises conveyed, and although by the deed of conveyance, the occupying tenant becomes the tenant of the grantee, under section 7095, R. S. 1894, the parties to the conveyance may, by contract, provide otherwise. The presumption, when the deed of conveyance contains no stipulation to the contrary, is that the grantee accepts the tenant as his own, and through such tenant is in possession.
The facts alleged, and which there is evidence to support, are that the appellant agreed to give the appellees immediate possession under and through an arrangement between himself and the tenant, whereby the ten
The contention of appellant, that the court erred in permitting the appellee Harry A. Frybarger to testify as to what amount he was compelled to expend to get possession, can not be sustained. The appellant was liable to the appellee for all sums necessarily expended by them in getting possession, when he failed to put them in possession.
We find no reversible error in the record.
Judgment affirmed.