Bryan v. Yoder

• Decision Date: 26 February 1947
• Docket Number: 28271.
• Citation: 71 N.E.2d 474,225 Ind. 57
• Parties: BRYAN v. YODER et al.
• Court: Indiana Supreme Court

71 N.E.2d 474

225 Ind. 57

BRYAN v. YODER et al.

No. 28271.

Supreme Court of Indiana

February 26, 1947

[Copyrighted Material Omitted]

Claude Y. Andews and Leroy O. Arnold, both of Peru, for appellant.

Rhodes & Rhodes, of Peru, for appellees.

YOUNG Judge.

It appears from the record in this case that prior to 1939 appellee Yoder had leased the land here involved from the heirs of one Clinton Nisbet, who was the owner thereof at the time of his death. While Mr. Yoder was in possession as a tenant, the heirs instituted partition proceedings and obtained the appointment of a commissioner to sell the land.

This first commissioner accepted an oral bid of $1,850 by appellee Yoder for the land but did not report such sale to the court and such sale was never confirmed, deed was never ordered and payment was never made. It appears that this alleged sale depends upon informal conversations between him and the heirs and the commissioner. It was made in September, 1939. The first commissioner died on October 21, 1940, and a second commissioner (appellee Reyburn) was appointed on November 28 1940, on the petition of the heirs to sell the land under the original order of sale.

The second commissioner knew nothing of the oral sale or elected to ignore it. He solicited purchasers and in February, 1945, made sale to appellant for $1,500 and the purchase price was paid. Yoder participated in the bidding. This sale was reported and confirmed by the court and deed was ordered and delivered and recorded. Within thirty days after this sale appellee Yoder had the sale set aside and the proceedings reopened upon representation that he would increase the bid at least ten per cent and guaranteed this with bond.

At the second sale the appellant and appellee Yoder again entered competitive bidding and on April 12, 1945, appellant again purchased the land, this time for $2050, but before the second sale could be reported appellee Yoder asserted rights under his oral purchase from the deceased commissioner, and on April 13, 1945, commerced this action by filing a complaint against his coappellees and appellant, in which he alleged that he had entered into a valid, oral contract with the commissioner appointed by the court in said partition proceedings to buy said land; that he entered into possession of said real estate under said contract and ever since has been, and is now, in possession of same and has at various times made valuable and lasting improvements thereon; that the said commissioner neglected and failed to report said sale to the court and neglected and failed to execute to him, said Yoder, as such purchaser, a deed of conveyance for said real estate although often requested to do so; that said commissioner thereafter died and appellee Reyburn was appointed as successor commissioner and that said successor commissioner is attempting to sell, and claims to have sold, said real estate to the appellant, and that said appellant is claiming and asserting title by reason of said sale to him by said successor.

After the alleged oral contract between appellee Yoder and the first commissioner had been entered into, and before said alleged sale to appellant by the successor commissioner, the dwelling house upon said real estate burned and appellee Yoder expended $900 in replacing same. This was alleged in the complaint and plaintiff claimed that he should be allowed credit in the sum of $900 as against the price he agreed to pay by said oral contract with said original commissioner. His prayer was that the court determine the amount of the balance of consideration owing by him for said real estate, which sum he offered to pay, and that the court order the second commissioner to execute to him a proper deed of conveyance for said real estate upon receipt of the amount found due under the alleged original oral contract with said original commissioner, and that his title to said real estate be quieted as against appellant and the appellees of said Truman Yoder. In the alternative he asked judgment for the amount expended by him on account of buildings and improvements made by him upon said real estate. Judgment was rendered against Yoder for the full amount he had agreed to pay the deceased commissioner, plus interest, and upon payment of same the successor commissioner was ordered to execute and deliver proper commissioner's deed conveying the real estate to Mr. Yoder.

It appears to us that this action was, in substance, for specific performance of the oral contract between appellee Yoder and the deceased original commissioner. The defendants in the action seem to have so considered it and took the position that the contract between appellee Yoder and the deceased commissioner is within the statute of frauds requiring contracts for sale of real estate to be in writing. Yoder contends that his possession and the making of improvements constituted such partial performance as removed the transaction from the operation of the statute of frauds. Appellant denies this. He points to the fact that Yoder had been a tenant in possession prior to the alleged contract and there is authority for the proposition that remaining in possession by a tenant does not constitute such part performance of a parol contract for the sale of lands as will avoid the statute of frauds. Swales v. Jackson et al., 1890, 126 Ind. 282, 285, 26 N.E. 62, and cases cited; Johnston v. Glancy, 1835, 4 Blackf. 94, 99, 28 Am.Dec. 45.

We are constrained also to consider the fact that Yoder participated in the bidding at two subsequent sales and had one of those sales set aside upon agreement to pay more. It is not necessary, however, for us to determine in this case whether the conduct of appellee Yoder, in participating in later sales and having one of them set aside, estopped him from setting up the earlier alleged oral contract of purchase, or whether his conduct in remaining in possession and making improvements upon said real estate was sufficient to avoid the force of the statute of frauds if the contract had been otherwise binding, because the alleged oral contract with the deceased commissioner was ineffectual for failure to report same to the court and have the alleged sale confirmed and deed ordered.

Partition of real estate is provided in Indiana by statute. The primary purpose of partition is to divide the property in kind, but where it is found that the land cannot be divided without damage to the owners sale by the commissioner and division of purchase money may be ordered by the court. § 3-2417, Burns' 1946 Replacement. After sale is made it must be reported to the court for confirmation and order that conveyance be made. § 3-2420, Burns' 1946 Replacement.

The duties of a commissioner for sale of land in a partition proceeding are determined by statute and orders of court. He is an instrument or arm of the court, acting for and primarily...