Burns v. Fox
| Decision Date | 09 December 1887 |
| Docket Number | 12,964 |
| Citation | 14 N.E. 541,113 Ind. 205 |
| Parties | Burns et al. v. Fox |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Jan. 26, 1888.
From the Newton Circuit Court.
The judgment is affirmed, with costs.
T. F Palmer, D. L. Bishop and A. K. Sills, for appellants.
S. P Thompson, for appellee.
The general rule is well settled, that before a party can enforce the specific performance of a contract to convey real estate, he must have made a demand for a conveyance, or a sufficient excuse must be alleged for not having made a demand, before bringing suit. Sheets v. Andrews, 2 Blackf. 274; Brown v. Jackson, 8 Blackf. 203; Mather v. Scoles, 35 Ind. 1; Reed v. Hodges, 80 Ind. 304; Harless v. Petty, 84 Ind. 269.
It is equally well settled that when one party has repudiated the contract, or refused performance, or has given notice to the other of his determination not to perform his part, a demand for performance, unless the previous notice has been withdrawn, is not necessary. Turner v. Parry, 27 Ind. 163; Hawley v. Smith, 45 Ind. 183 (202); Blair v. Hamilton, 48 Ind. 32; Durland v. Pitcairn, 51 Ind. 426; Phoenix, etc., Ins. Co. v. Hinesley, 75 Ind. 1.
The appellee charged in her complaint that John Burns, prior to his death, entered into an oral agreement with her, whereby he agreed, in consideration that she should maintain and support his invalid mother during her lifetime, that he would convey to the appellee a certain tract of land in Jasper county. She alleged that she took possession of the land and made lasting and valuable improvements thereon, and that she fully kept and performed the agreement on her part, but that her father failed, neglected and refused to convey according to the agreement.
It was also alleged that since the death of her father the appellants, his heirs, refused to make a conveyance to her, and that they had instituted proceedings to make partition of the land, and that they were seeking to have it set off to one of the other heirs, although the complainant remained in possession.
The ordinary signification of the word "refuse" is to deny a request or demand, and as the complaint alleges that both the father, in his lifetime, and the appellants, who succeeded to the legal title to the land as heirs, refused to convey in compliance with the contract, a sufficient excuse was shown for not having made a further demand. Besides, the appellants having instituted proceedings in partition, they thereby necessarily asserted such a claim of title on their part as amounted to an utter repudiation of the alleged contract of their ancestor.
The reason for the rule which requires a demand before bringing suit is that the covenantor may be afforded a fair opportunity to perform his contract, after becoming aware that the covenantee desires to receive the title, without being harassed with a suit to compel him to do that which he would have done, upon reasonable request, without compulsion. If, however, it appears that the covenantor has put himself in such an attitude in respect to the alleged contract as makes it plain that a demand would be unavailing, the law will not exact the mere idle ceremony.
There was no error in overruling the demurrer to the complaint.
It is shown by a bill of exceptions contained in the record, that the plaintiff was permitted, by leave of court, over the appellants' objection, to amend her complaint after the evidence was heard and the argument of counsel had been concluded.
The amendment permitted and made was to insert the word "refused" in the connections already referred to. After the amendment the appellants refiled their demurrer to the complaint, and the demurrer was again overruled.
The appellants complain that the court abused its discretion in allowing the amendment over their objection.
While it is true that, in allowing amendments after the trial has substantially ended, a degree of caution should be observed so as to prevent...
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