Bray v. Pearsoll
| Decision Date | 31 May 1859 |
| Citation | 12 Ind. 293 |
| Parties | Bray v. Pearsoll and Another |
| Court | Indiana Supreme Court |
From the Boone Court of Common Pleas.
The judgment is reversed with costs. Cause remanded.
O. S Hamilton and D. H. Hamilton, for appellant.
A. J Boone and H. Shannon, for appellees.
The appellees, who were the plaintiffs, brought this action against Bray, who was the defendant, upon a promissory note for the payment of 90 dollars. The note bears date May the 16th, 1855, and was payable to one George W. Gibson at seven months. Gibson, on the 29th of the same month, assigned it to the plaintiffs.
The defendant, in his answer, alleges that the note was executed by him to Gibson for and in consideration of, and as part payment for, a tract of land, describing it; that the vendor, at the time of the sale, represented to the defendant that the line on the north side of the tract ran so as to include a certain dwelling-house of the value of 300 dollars; that defendant, believing said representations to be true, purchased the land, and accepted a deed from one William McLane, in whom the title was, who, also, when he made the deed, represented said dwelling-house to be within the boundaries of the land. It is averred that the representations were false and fraudulent; that said line did not so run, &c., and that said house was not within the boundaries of the land sold and conveyed as aforesaid; and further, that defendant, having taken possession of said house under his purchase and deed, was afterwards ejected therefrom by one Samuel Vest, who held an older and paramount title, &c.
The plaintiffs replied by a general denial. The issues were submitted to a jury, who returned a verdict in this form: "We the jury, in accordance with the instructions of the Court, find for the plaintiffs 97 dollars and 36 cents--the amount of the note sued on with interest."
Motion for a new trial denied, and judgment, &c.
The facts, so far as they relate to questions arising in the record, are these: The legal title to the land, described in the complaint, was in William McLane, though it really belonged to his sons, James and Selden McLane. In June, 1854 William McLane sold the land described in the complaint, being authorized to do so, to Bray, the defendant, for 1.600 dollars, of which 1,200 dollars was paid in hand, and for the residue the defendant executed two promissory notes, each for the payment of 200 dollars, payable, December 25, 1855. One of these notes, by the assent of the vendor and his sons, James and Selden, was made payable to Gibson, the assignor of the note in suit. At the time of the sale, the vendor pointed out to defendant certain lines, which he represented as the true boundaries of the land, and the boundaries thus pointed out included the dwelling-house mentioned in the complaint. The vendor, in pursuance of the sale, executed a deed to the defendant. In May, 1855, Gibson, being indebted to one John Cole 110 dollars, handed him, Cole, the 200 dollar note, stating that it was for a part of the purchase-money of said real estate, and a lien thereon. And Cole, by the directions of Gibson, called on defendant, and procured him to give, in lieu of the 200 dollars, two notes, viz., one for 110 dollars payable to him, Cole, and another for 90 dollars, payable to Gibson, on the 25th of December, 1855. The last note is the one on which this suit is founded. After this, in February, 1856, it was ascertained by actual survey that said dwelling-house...
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