Carr v. Hays

• Decision Date: 19 March 1887
• Citation: 11 N.E. 25,110 Ind. 408
• Parties: Carr, Adm'r, v. Hays.
• Court: Indiana Supreme Court

110 Ind. 408

11 N.E. 25

Carr, Adm'r,

v.Hays.¹

Supreme Court of Indiana.

March 19, 1887.

Appeal from circuit court, White county.

Reynolds & Sellers, for appellant. W. F. Hays, for appellee.

HOWK, J.

In this case errors are assigned here by appellant, the defendant below, which call in question the overruling (1) of his separate demurrers to each of the first, second, and third paragraphs of appellee's claim or complaint,and (2) of his motion for a new trial. These errors we will consider in the order of their statement, and decide the several questions thereby presented and discussed by appellant's counsel in their brief of this cause.

1. In the first paragraph of his claim or complaint, appellee alleged that, in 1878, Benjamin D. Pettit died intestate in White county, Indiana, and that, about 1880, appellant Carr became, and since had been, and then was, the sole administrator of such decedent's estate; that on the thirteenth day of September, 1876, appellee and his wife conveyed, by warranty deed, to said Benjamin D. Pettit, then in full life, certain lands particularly described, in White county, containing 511 1/2 acres, and of the value of $30,000, the consideration expressed in such deed having been, however, only $25,890; that on the day last named, in consideration of the execution and delivery to him of the aforesaid deed, said Benjamin D. Pettit agreed to and with appellee and his wife to pay the sum of $21,081, in the aggregate, to certain individuals and banking corporations, and relieve appellee of any and all liability upon the same; that, in addition to the payment of such sums of money, said Benjamin D. Pettit also agreed to insure to appellee the undisturbed and quiet possession of all of such lands for at least three years from said thirteenth day of September, 1876, and that he would supply appellee with 600 head of yearling steer cattle, to be grazed and matured on such lands, and on other lands then in appellee's control, and that, at the end of such three years, the said Pettit was to reconvey to appellee, upon the payment of such sum of $21,081, with the interest, all the lands described in such deed. And appellee averred, that said Benjamin D. Pettit violated all the terms and conditions upon which such conveyance was made, in all of their essential particulars; that, instead of paying off the sums of money he agreed and covenanted with appellee to pay off, he suffered judgment to be taken against appellee, and execution to issue for the possession of such lands, soon after he took such deed, and a long time prior to the time when appellee, under his covenant, was to yield up the possession of such lands; that said Pettit became an active participant in such suit for possession of such lands, by the employment of able counsel to prosecute the same against appellee; that, instead of protecting appellee in the peace and quiet of his former possession, he proceeded to and did covenant with Alice L. and David Elliott, and Kittie and John McCoy, who were the legal heirs of one John Richey, the holders at that date of a certain mortgage against such lands, amounting then to the sum of $14,000, which sum is one of the several sums assumed by said Pettit to pay immediately upon his taking of such deed for said lands; which sum and indebtedness said Pettit did not pay, but fraudulently sought to obtain title to all of such lands, and avoid the solemn covenants under which he obtained his deed from appellee and wife, by procuring or permitting the sales of such lands under a decree of foreclosure, and a certificate of purchase from the sheriff of such county to issue to said Elliotts and McCoys for all of such lands; and, at the same time, contracting and colluding with them, said Elliotts and McCoys, and one Wilstach, to possess him, said Pettit, of such lands, and thereby evade the terms and conditions under which he took title to such lands from appellee and wife. Appellee further averred that, in pursuance of such fraudulent collusion upon the part of said Pettit, he (appellee) had been dispossessed of all of such lands, and that said Pettit's legal representatives then held such possession; that no money or other consideration had been paid appellee for such described lands then held by said Pettit's estate; that there was then due appellee from such estate, as damages from the breach of said Pettit's contract, the sum of $25,000, and for the unpaid purchase money of such lands the further sum of $25,891, with the legal interest thereon. Wherefore, etc.

After the court below had sustained appellant's motion to strike out a certain portion of the second paragraph of appellee's claim, there was no substantialdifference between this paragraph and the third paragraph of such claim or complaint.

The material facts averred in the second and third paragraphs of appellee's claim are that on September 13, 1876, appellee was the owner of 511 1/2 acres of land, particularly described, in White county, which lands he and his wife, on the day last named, conveyed by their warranty deed to Benjamin D. Pettit, then in full life, but since deceased; that on the same day, in consideration of the execution to him of such conveyance to him, said Pettit executed to appellee a written contract, of which the following is a copy:

“Brookston, September 13, 1876.

I hereby assume and agree to pay the sum of twenty-one thousand and eighty-one dollars, as follows, to-wit: The sum of fourteen thousand dollars to the heirs of John Richey, deceased; thirty-seven hundred and seventy-five dollars to the Second National Bank of La Fayette, Indiana; fifteen hundred and six dollars to the La Fayette Savings Bank; and eighteen hundred dollars to George Chamberlain. Should Cormacan Hays pay me the above amounts, with the interest thereon at the rate of ten per cent. per annum, within three years from this date, or cause the same to be paid, then I bind myself, my heirs and administrators, to make the said Cormacan Hays a good and sufficient deed to a certain tract of real estate contained in a deed of said Hays to Benjamin D. Pettit dated August 1, 1876.

[Signed] B. D. Pettit.”

It was further alleged that the sums mentioned in such written contract were debts of appellee; that the sum to be paid the heirs of John Richey was secured by a mortgage; that the residue of such debts were evidenced by promissory notes signed by appellee, with said Pettit as security thereon; that, as a further consideration for such deed by appellee and wife, and as an inducement to appellee to execute such deed and accept such written contract, said Pettit verbally agreed with appellee that he should continue to occupy and have the use and enjoyment of the lands so conveyed for the full...