Bethell v. Bethell

• Decision Date: 02 January 1884
• Docket Number: 7443
• Citation: 92 Ind. 318
• Parties: Bethell v. Bethell
• Court: Indiana Supreme Court

92 Ind. 318

Bethell v. Bethell

No. 7443

Supreme Court of Indiana

January 2, 1884

From the Spencer Circuit Court.

Judgment affirmed.

A Iglehart and J. E. Iglehart, for appellant.

C. H Butterfield, E. Gough and E. R. Hatfield, for appellee.

OPINION

Elliott, J.

This case is here for the second time. On the former appeal, Bethell v. Bethell, 54 Ind. 428 (23 Am. R. 650), it was decided that the deed upon which the action is founded did not contain a covenant of seizin; that the laws of the State of Missouri, where the land is situate, could not extend into this State so as to incorporate covenants in the deed, and that the law of the place of the contract governs the courts in determining the question whether or not the deed contains covenants of warranty or seizin.

The law of the case, so far as concerns this point, is made by the decision on the former appeal, for it is settled law that where an appellate court decides questions fully presented by the record, and directly involved in the cause, the decision controls throughout all the subsequent progress of the case.

The law of the case, then, is that no action for a breach of covenant of seizin can be maintained, because there is no such covenant in the deed.

The effect of the ruling on the former appeal was sought to be obviated by an amendment of the complaint, and we are now to examine the amended complaint and ascertain whether it states a cause of action within the rule heretofore laid down in this cause.

The substance of the second paragraph of the complaint is that the appellee executed the deed to the Missouri land pursuant to an agreement for the exchange of property; that the appellant "represented that his title to the Missouri lands was good and perfect, and that he held them by deed of general warranty under the laws of that State; and that in consideration that the plaintiff would convey to him, the defendant, the Warrick county land by deed, in manner and form aforesaid, the defendant would convey the Missouri land to plaintiff by deed of general warranty under the laws of that State, and containing just such covenants and warranties as were contained in the deed for the said land to the defendant from his vendors and grantors." The allegation which we have copied is followed by the averment that the appellee performed his part of the contract, that the appellant delivered the deed set forth, and that it is not a deed with covenants of warranty and seizin. Then follow these allegations: "That the deeds to the defendant from his grantors contained covenants of title, of seizin, of good right to convey, and of warranty; that in order to carry out his contract with plaintiff, the defendant procured and directed his wife to copy the deed to plaintiff, set out above, from the deed from defendant's grantor of said Missouri lands, with the necessary changes as to the names, dates and consideration; and that the defendant's wife in copying said deed inadvertently and undesignedly, and without the knowledge or consent of the defendant, omitted to copy into the plaintiff's deed the covenant of warranty and seizin, and of good right to convey, which was and is contained in the deed to defendant from which she copied." Want of title in the appellant, and other matters required to show a breach of covenant, are properly pleaded.

Before considering the objections made to this paragraph of the complaint, it is proper to say that it is challenged, not by demurrer, but by the assignment of errors. It is not, therefore, to be examined with that particularity and scrupulous care which would be necessary if there were errors assigned upon a ruling made on demurrer. Many objections which would be available upon demurrer are without force after verdict.

The complaint shows a preliminary contract, entitling the appellee to a deed, with full covenants; it shows also an attempt to carry the contract into effect by the execution of such a deed, and that the intention of the parties was defeated by the mistake of the person who drew the deed. It is objected that there is no statement of what the writer of the deed omitted, but we are not disposed to allow this objection to prevail, because there are facts averred from which it can be fairly and readily inferred that the writer omitted the full covenants contained in the deeds executed to the appellant. We are, indeed, of the opinion, that, in this particular, the paragraph would have been good on demurrer.

As the law of Missouri was not pleaded, the presumption is that the common law prevailed in that State. Smith v. Muncie Nat'l Bank, 29 Ind. 158; Robards v. Marley, 80 Ind. 185. Proceeding upon this principle, the appellant argues that a warranty deed at common law need not contain a covenant of seizin, and that, therefore, the appellee was not entitled to such a deed. This argument is fallacious. The averments of this pleading are, that the appellant promised to make a deed, with covenants of warranty, of seizin, and of good right to convey, and that he undertook to carry this contract into effect by executing a deed, but by the mistake of the draughtsman was prevented from executing such a deed.

The law of this State is, that an executory contract for a general warranty deed calls for a deed with full covenants. Clark v. Redman, 1 Blackf. 379; Leonard v. Bates, 1 Blackf. 172; Dawson v. Shirley, 6 Blackf. 531; Linn v. Barkey, 7 Ind. 69; Parker v. McAllister, 14 Ind. 12. There can, therefore, be no doubt that, under the allegations of the second paragraph of the complaint before us, the appellant was entitled to a deed with a covenant of seizin, and that the mistake of the person who drew the instrument prevented him from securing such a deed. Rawle Cov. (4th ed.), 35.

The covenant of seizin is a personal covenant, and, we think, that as to such a covenant a deed may be reformed, although the land upon which the deed operates is situated in another State. Bethell v. Bethell, supra; Craig v. Donovan, 63 Ind. 513; McClure v. McClure, 65 Ind. 482; Wilson v. Peelle, 78 Ind. 384. A decree reforming a mistake operates upon the contract and the parties, and where the contract is made in the State where the parties reside, the suit to reform is properly brought in that State. We regard the case of Watkins v. Holman, 16 Peters 25, as against rather than for the appellant upon this point, for it was there decided that "A court of chancery, acting in personam, may well decree the conveyance of land in any other State, and may enforce their decree by process against the defendant." The principle which rules this case is the same as that which governs suits to enforce the specific performance of contracts, and it is well settled that such suits may be brought where the parties reside, although the land lies in a foreign State. The doctrine is thus stated in Brown v. Desmond, 100 Mass. 267: "A suit for specific performance of a contract for the conveyance of land proceeds in personam, and may be maintained in any court of equity which has jurisdiction of the parties, even if the land lies in another State or a foreign country." The case of Mitchell v. Bunch, 2 Paige 606, reviews many authorities and declares a like principle. Many cases to the same effect are cited by a recent writer. 1 Pomeroy Eq., section 135. Our own cases recognize the rule that a decree for specific performance operates upon the person, and not directly upon the property. Coon v. Cook, 6 Ind. 268; Dehart v. Dehart, 15 Ind. 167. It is true, that Parker v. McAllister, supra, holds a different doctrine, but that case is at variance with the later case, and is in conflict with the well known rule that equity only acts upon the person. In Vail v. Jones, 31 Ind. 467, the case of Parker v. McAllister, supra, is incidentally referred to as still authoritative, but it is evident that the question was not considered. It is not easy to reconcile the doctrine of the last named case with the settled rule that new trials are not demandable as matter of right in actions for the specific performance of contracts. Benner v. Benner, 10 Ind. 256; Allen v. Davison, 16 Ind. 416; Walker v. Cox, 25 Ind. 271; McFerran v. McFerran, 69 Ind. 29. But, whatever may be said as to the present force of the decision in Parker v. McAllister, supra, it is clear that it does not conflict with our conclusion, that independent of statute, suits to reform contracts, or to enforce specific performance, may be brought where the defendants reside. This we say, because that case is placed solely upon the statute.

We are satisfied that the second paragraph of the complaint states a cause of action.

The material allegations of the third paragraph of the complaint may be thus summarized: For the consideration of property worth $ 4,800 appellant agreed to convey the Missouri land to the appellee, represented that he had a perfect title to it, and agreed to make a deed with full covenants. The appellee asked for a short form warranty deed, but the appellant induced him to accept another form, by representing that as the land was situated in Missouri, such a deed would not be sufficient, and that he would make a valid deed, with full covenants and properly execute and record it. The appellee was a farmer, utterly ignorant of the laws of Missouri, and he knew the appellant to be a trader in property, and believed him to be possessed of full information, and relied upon him as a man of great business experience and integrity; that appellant did make and record a deed, but it was not seen by appellee until long after its execution and recording; it did not contain any covenants, and appellant, as he well knew, had no title to the land which he assumed to convey.

This paragraph of the...