Arnold v. Cord

• Decision Date: 31 May 1861
• Parties: Arnold v. Cord
• Court: Indiana Supreme Court

16 Ind. 177

Arnold v. Cord

Supreme Court of Indiana

May 31, 1861

APPEAL from the Johnson Circuit Court.

The judgment is affirmed, with 1 per cent. damages and costs.

C. C Nave, for the appellant.

OPINION

Perkins J.

Suit to avoid a conveyance for fraud, and to recover possession of land. Issues of fact were formed, and tried in Marion county, and a new trial granted on the application of the defendant, now the appellant. A change of venue was taken to Johnson county, and a continuance was there applied for, but no question arises in this Court upon any of the proceedings in the cause till subsequent to that application. The deposition of a witness resident in the State, if not in the county where the cause is tried, or in an adjoining county, may be taken in vacation. 2 R. S § 250, p. 86.

The cause was tried by a jury, the parties agreeing that each might submit interrogatories to be answered, and that the answers thereto should be taken as the verdict in the cause. Seventy-nine interrogatories, in the aggregate, were submitted, and most of them answered. On these answers, as an agreed special verdict, judgment was rendered for the plaintiff.

The facts of the case are these. Cord had mortgaged his land to the State. Arnold, as two successive juries found, induced Cord to let him, Arnold, purchase the land at the sale on the mortgage, promising to hold it for Cord's benefit, and to permit him to redeem it; Arnold intending all the time to cheat Cord out of the land. He promised to give Cord a writing evidencing his right to redeem, but baffled him in relation to it, till it was too late for Cord to raise the money to prevent the sale, and after the sale refused it altogether. Arnold got possession under his purchase.

The following propositions, supported by authority, meet and settle the case:

"A person agreeing verbally to bid in land for another at sheriff's sale, shall be bound and decreed to hold in trust, though he took the title in his own name, and plead the Statute of Frauds in bar." Denton v. McKenzie, 1 Desaussure 289.

"The purchaser of real estate under a void judicial sale must, in a proceeding to recover back the purchase money with interest, account for rents and profits received by him while in possession of the premises." Taylor v. Conner, 7 Ind. 115. See, as bearing on some of the points, Ludlow v. Kidd, 4 Ohio 244; Steele v. Worthington, 2 Ohio 182; Woods v Dille, 11 Ohio 455; 6 Wheaton 498; 6 Johns. Ch. R. 531; 7 Blackf. 178.

"If A. purchase property at execution, at the request of the debtor, under an agreement to restore it to the debtor, whereby the debtor is induced to relax his exertions to satisfy the execution, the agreement will be enforced." Lillard v. Casey, 2 Bibb 459.

"A Court of Equity will not permit the Statute of Frauds to be set up as a defense by a party infected with fraud; and parol trusts of real estate have frequently been established in direct contradiction of the statute, on the ground of fraud." Hill on Trustees, side page, 59.

Speaking of the fraudulent failure to execute a written instrument according to agreement, the same author says: "the Court in all these cases acts upon the principle that the instruments which would have been executed, or would have existed, but for the fraud, are to be treated as if actually executed and existing." Ibid, side page, 152. He cites, Middleton v. Middleton, 1 J. & W. 99; Salturn v. Melhuish, Ambl. 249.

"Where a grantee agrees to give a defeasance, and after he has got the deed evades doing it, Chancery will relieve against the fraud and enforce the agreement." Peck v. Baldwin, 1 Root. 455.

"A piece of land subject to a mortgage, to secure a debt for which the owner of the land was not personally liable, was sold under an agreement with the mortgagee that the owner might purchase it at a reduced price. The owner employed an...