8 Ind. 124 (Ind. 1856), , Carver v. Fennimore

Citation:8 Ind. 124
Opinion Judge:Perkins, J.
Party Name:Carver v. Fennimore
Attorney:W. March and J. Davis, for appellant. D. S. Gooding and R. Lake, for appellee.
Judge Panel:Per Curiam.
Case Date:November 27, 1856
Court:Supreme Court of Indiana

Page 124

8 Ind. 124 (Ind. 1856)




Supreme Court of Indiana

November 27, 1856

From the Madison Circuit Court.

The judgment is affirmed with 3 per cent. damages and costs.

W. March and J. Davis, for appellant.

D. S. Gooding and R. Lake, for appellee.


Page 125

Perkins, J.

Suit upon a promissory note by the assignee against the maker. The maker answered that the note was given for the consideration of a piece of land purchased by him upon the terms stated in a title-bond executed at the time, viz.: that there should be paid for the land 2,000 dollars, for which promissory notes were executed; and that he should have a good and sufficient deed, "upon payment of the purchase-money." He further answered, that a deed had not been tendered, and also that the land, at the time of the execution of the bond, was in the adverse possession of a third person.

The bond and the note sued on bear date March 12th, 1855. The note is for 1,000 dollars, due on the 25th of December, 1855. The record is silent as to the other note.

The answer was demurred to, the demurrer sustained, and the defendant failing to answer further, judgment was rendered against him for the amount of the note.

The paragraph setting up adverse possession,--in other words, want of title at the time of the execution of the bond,--is no bar to the suit. It would be enough that the obligor procured

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the title by the time he himself agreed to convey it. The answer should have gone further and shown that he could not do that. Wright v. Blachley, 3 Ind. 101; Sweeney v. Sampson, 5 Ind. 465 1.

Counsel put the case, in argument, mainly upon the construction to be given to the bond; whether it makes the payment of the purchase-money and the execution of the deed independent or dependent and concurrent acts.

In Carpenter v. Lockhart, 1 Ind. 434, the contract was to make a deed so soon as the purchase-money should be fully paid; and it was held there that the deed and payment must be concurrent acts, to be performed on the day the last installment of the purchase-money fell due--that being fixed by the day of payment of the note for said installment.

In Mix v. Ellsworth, the contract was to make a deed on payment of the notes given for the purchase money; and it was held that by that contract the deed was to be...

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