Cree v. Sherfy

• Citation: 37 N.E. 787,138 Ind. 354
• Decision Date: 05 June 1894
• Docket Number: 16,867
• Parties: Cree, Administrator, et al. v. Sherfy
• Court: Indiana Supreme Court

37 N.E. 787

138 Ind. 354

Cree, Administrator, et al. v. Sherfy

No. 16,867

Supreme Court of Indiana

June 5, 1894

From the Monroe Circuit Court.

The judgment is affirmed.

J. H Louden, T. J. Louden, and E. Corr, for appellants.

E. K Millen and H. C. Duncan, for appellee.

OPINION

Dailey, J.

This is an action by the appellee against the appellants, to set aside a conveyance executed by the appellee to the decedent Joseph D. Sherfy, and to quiet the title of the appellee. The appellants, Elmer Sherfy and Ida Sherfy, are minors, who appear by guardian ad litem. After the issues were made, there was a trial in the court below before the court and at the request of the appellants the court made a special finding of the facts, and stated its conclusion of law thereon, on which judgment was rendered for the appellee. The appellants appeal to this court, and assign errors severally and jointly to the proceedings in the lower court. To the amended complaint filed in the cause the appellants demurred separately and severally for the reason that it did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, to which the defendants excepted, and to this ruling each of the appellants separately and severally assign error, which brings into review the facts alleged in the complaint, viz: That on the 24th day of November, 1886, the plaintiff was the owner of certain real estate therein described, containing 53 acres, of the value of $ 5,000; that his son Joseph resided with him up to the time of his marriage with the defendant, Mary E. Sherfy, in 1885, after which said Joseph and his wife continued to live with the plaintiff; that on said 24th day of November, 1886, the plaintiff entered into a contract with his said son, by the terms of which he was to convey to the son said real estate and his farming implements, for the following consideration, to wit: The sum of $ 500, and the further consideration that the grantee should board the grantor, do his washing and mending, and wait on him in sickness, and otherwise care for him during the remainder of his life, which contract was executed in writing, and a copy thereof is filed with the complaint. Plaintiff further alleges that pursuant to said agreement, he conveyed said property to his son, Joseph D. Sherfy, but the consideration for such transfer has wholly failed in this, to wit: That although the said Joseph received, to his sole use and benefit, the said farming implements, etc., and the use, occupancy, and profits of said real estate for five years, etc., the plaintiff has at no time been paid the said sum of $ 500, or any part thereof; that on the 15th day of April, 1892, the said Joseph D. Sherfy died intestate, leaving surviving him his widow, the said Mary E. Sherfy, and his minor children, the defendants, Elmer and Ida Sherfy; that on the 21st day of April, 1892, the defendant, Robert A. Cree, was duly appointed administrator of the personal estate of said decedent, and is now acting as such; that by reason of the death of said Joseph D. Sherfy, and the abandonment of the said contract and agreement, by any and all persons in any way claiming under him, the plaintiff was left alone, and re-entered and remained in possession of said premises to care for the same, and as best he could provide himself with the necessaries of life. Wherefore he asks that the title to said real property be revested in him, and quieted against the defendants, and for other proper relief. The sufficiency of the complaint, and the conclusion of law upon the facts found under any testimony that might have been properly heard on the trial of the cause, are the questions presented by the record. It is contended on behalf of the appellants that the complaint states no cause of action against the widow and children of Joseph D. Sherfy, because it does not allege a return or offer to return what was received by the appellee; that the complaint to be good on demurrer must show that Samuel Sherfy had tendered, previous to the commencement of this action, the note he held against the decedent for $ 500, and a sum of money equal to the value of his support for the six years he lived with the son. They also insist that the complaint is bad on demurrer, because it fails to allege a demand made by the plaintiff for the performance of the contract before it was filed, and that there is no allegation in the complaint showing conditions in the deed; that the agreement by decedent to pay $ 500, and "to board the father as a member of the family, * * * to do his washing and mending, and wait on and nurse him in time of sickness, and care for him tenderly as a son should care for his father during all the time of his natural life," was a contract and agreement outside of the deed, entered into by the plaintiff and the son after the deed was executed, and that the complaint contains no averment showing that the deed was made on a condition subsequent, and hence it is insufficient to warrant the relief sought and obtained.

It is a general rule that a contract will not be rescinded when the parties can not be placed in statu quo. In order to secure a party his rights, as well as to enable him to institute legal proceedings, in causes of action arising ex contractu, it is ordinarily necessary that a demand be made upon the party who is bound to discharge the obligation or perform the contract. The legitimate object of a demand is to enable the party to perform his contract or discharge his liability, agreeable to the nature of it, without a suit at law. In actions on contract, the failure to make a necessary demand before suit, is cured by proof that the defendant could not have complied with the demand. Wilstach v. Hawkins, 14 Ind. 541.

In 5 Am. and Eng. Encyc. of Law, 528d, it is said: "Where a matter alleged lies equally in the knowledge of the plaintiff and defendant, an averment of notice is not necessary, as if it be an act to be done by a stranger. Neither demand nor notice nor other diligence is necessary when the party to be charged had no right to expect it, and could not have been injured by the omission of it."

The doctrine is well settled that the law...