West v. Wright

• Decision Date: 24 November 1884
• Docket Number: 11,237
• Parties: West v. Wright
• Court: Indiana Supreme Court

98 Ind. 335

West v. Wright

No. 11,237

Supreme Court of Indiana

November 24, 1884

From the Grant Circuit Court.

The judgment is reversed with costs, with instructions to overrule the demurrer to the first paragraph of the complaint.

A Steele, R. T. St. John, R. G. Steele and J. W. R. Milliner for appellant.

I VanDevanter, J. W. Lacey, W. VanDevanter, R. B. Duncan, J. S Duncan, C. W. Smith and J. R. Wilson, for appellee.

OPINION

Zollars, C. J.

Appellant instituted this action to recover damages which he claims to have suffered by the fraud of appellee, in the purchase of a tract of land in Henry county from him as executor of the will of a deceased owner.

Following the allegations of the sale, the description of the land, the payment of the full amount of the purchase-money, which was equal to the value of the land, the complaint proceeds as follows:

"That said defendant, at the time of said purchase of said lands, knowingly, falsely and fraudulently represented to said plaintiff that said lands were clear of all encumbrances whatever; that there was not a debt against said lands, and further stated at said time to said plaintiff, that if anything should come up against said lands, he would stand responsible for said indebtedness, whatever it might be, and thereby induced said plaintiff, by reason of his false and fraudulent representations, to purchase said lands of said defendant as aforesaid, without first examining the records of said county as to said lands; that at the time said plaintiff purchased said lands he lived in Wayne county, Indiana, and still lives in said county and State, a distance of twenty miles from said lands; that he relied wholly on said defendant's representations as to said lands; that he had always supposed said lands were clear of all encumbrances, as represented by said defendant to said plaintiff, until the auditor of Henry county, Indiana, advertised said lands for sale; that said plaintiff did not know that there was any encumbrance on said lands until after he had fully paid the price agreed upon for said lands, and the auditor of said county advertised said lands for sale on a school fund mortgage on said lands, which is filed herewith, made a part hereof, and marked 'Exhibit A'; that at the time said plaintiff purchased said lands of said defendant, the said school fund mortgage was on said lands, and had been on said lands since the 16th day of January, 1865; that said mortgage, interest and costs was four hundred and forty-four dollars ($ 444); that it was due and unpaid; that said plaintiff was compelled to pay, and did pay, said mortgage, interest and costs, or suffer said lands to be sold therefor."

There was a second paragraph of complaint, which we need not here set out. A demurrer was sustained to each paragraph, and appellant excepted. After he had taken his exception, leave was given to amend the complaint, and the case was continued.

The record does not disclose whether or not this leave was given at the request of appellant The record shows the following entry at a subsequent term:

"Come now the parties by counsel, and the plaintiff now withdraws his leave to amend his complaint and excepts to the ruling of the court upon the demurrer to the complaint, and plaintiff refusing to plead further, judgment is rendered against him on the demurrer," etc.

From this judgment appellant appeals, and assigns as error the sustaining of the demurrer. Appellant contends that the leave to amend was a waiver of the exception to the ruling of the court upon the demurrer, and that the attempted exception at the subsequent term was too late to save any question. Had appellant filed an amended complaint, that would have been a waiver of the exception to the ruling upon the demurrer, but we think that it would be going too far to hold that the simple leave to amend, whether voluntarily given by the court, or at the request of appellant, was a waiver of such exception.

The case of Hurd v. Smith, 5 Colo. 233, cited by counsel, is not authority here, because, in that case, the leave to amend was not withdrawn.

Appellant's attorneys, assuming that the facts stated in the complaint make an actionable case of fraud, devote their entire argument to combating the proposition that appellee is absolved from liability for his fraud, because, in selling the land, he was acting as executor. This line of argument affords reasonable grounds for inferring that the court below sustained the demurrer on the ground which counsel thus combat. We know of no reason why appellee should be absolved from liability for his own positive fraud because he sold the land as executor.

In this fraud, he, in no wise, represented the estate. There was nothing in the relation which he bore to the estate which would justify such action, or make the estate liable. It seems clear to us, that so far as shown by the complaint, no liability on the part of the estate was created by this fraud. If appellant may not recover from appellee the damages he has suffered by his fraud, he is remediless. We do not think that this is or should be held to be a case of "damnum absque injuria." Appellee does not challenge the complaint on this ground, but contends that it is otherwise insufficient. His contention is, in substance:

First. That the facts constituting the fraud are not set out.

Second. That the averments do not show that appellee knew that the representations were false.

Third. That the averments as to the school fund mortgage amounted only to a conclusion of law, and hence do not show that the mortgage was an encumbrance upon the land when it was conveyed to appellant.

Fourth. That there is no averment that the school fund mortgage was recorded.

The complaint is not as formal and specific as it might have been, but we think that it is sufficient under our code which requires only "A statement of the facts constituting the cause of action, in plain and concise language, without repetition, and in such manner as to enable a person of common understanding...