Clark v. Mullenix
| Decision Date | 19 January 1859 |
| Citation | 11 Ind. 429 |
| Parties | Clark v. Mullenix |
| Court | Indiana Supreme Court |
From the Putnam Circuit Court.
The judgment is reversed with costs. Cause remanded for a new trial.
J. P Usher, J. A. Matson and C. C. Nave, for appellant.
Bill in chancery, filed under the old practice, by the appellee against the appellant, for the specific performance of a contract for the sale of land. The cause was tried since the code took effect, but there was a motion for a new trial, on the finding of the Court for the plaintiff below, which was overruled, and exception taken, the bill of exceptions setting out the evidence.
The bill avers that in May, 1848, the plaintiff purchased of the defendant, Nancy Clark, a certain piece of land therein described for the sum of 400 dollars, to be paid in four equal payments, on the 25th of December, of the years 1848 1849, 1850, and 1851, with interest from the 1st of May, 1848; that he executed to the defendant four notes for the purchase-money, as above specified, and was put, by her, in possession of the land, and has made valuable and lasting improvements thereon; that he has paid to the defendant the purchase-money, and demanded a deed, which she refuses to execute.
The facts charged in the bill are denied under oath.
The Court, on its finding, decreed specific performance.
It appears from the evidence that the defendant, who resided in Kentucky, by her letters to one John Allee, of Indiana, authorized him to sell the land in controversy; and that in pursuance of such authority, said Allee, as agent of the defendant, sold the land to the plaintiff, and put him in possession thereof, and also took from the plaintiff the notes above specified for the purchase-money, which notes were retained in the possession of Allee until they were paid to him by the plaintiff, and taken up. Soon after the land was sold, Allee received letters from the defendant ratifying and confirming the sale. This was in 1848.
Afterwards, the defendant became dissatisfied with the sale thus made, on the alleged ground that it had been sold for less than its value, and sought to repudiate it. On the 24th of September, 1850, she executed to Henry H. Clark, a power of attorney, whereby she authorized and empowered him to sell and convey the land in controversy, and to receive the purchase-money, and all rents or claims due her in the state of Indiana. About the first of October, 1850, said Henry H. Clark, having with him the power of attorney, came to the county of Putnam, and had an interview with the plaintiff in relation to the land. The plaintiff and said Henry H. Clark went to see said Allee. In the language of said Allee, the plaintiff's witness,
"Henry H. Clark came to my house in company with the complainant, and said his sister (the defendant) was dissatisfied with the trade, and gave notice to the complainant that she wanted the land, and exhibited his power of attorney from defendant." It appears that after some consultation between the plaintiff and Allee, it was agreed that the power of attorney should be submitted to some lawyer of Greencastle, and accordingly the whole matter was submitted to Judge Farley for his opinion. On the same evening after consulting Judge Farley, the complainant agreed to set aside the contract, and give 500 dollars for the land.
At the time of this transaction none of the principal had been paid on the...
To continue reading
Request your trial