Drum v. Stevens

• Citation: 94 Ind. 181
• Decision Date: 14 March 1884
• Docket Number: 10,276
• Parties: Drum v. Stevens
• Court: Supreme Court of Indiana

94 Ind. 181

Drum v. Stevens

No. 10,276

Supreme Court of Indiana

March 14, 1884

From the Wells Circuit Court.

J. S Dailey and L Mock, for appellant.

T. W Wilson, for appellee.

OPINION

Black C.

Harriet Stevens sued the appellant for specific performance of a parol contract for the conveyance by the latter to the former of certain real estate--a town lot.

After the filing of the transcript in this court, said Harriet died, and by agreement Samuel P. Stevens, her sole heir, was substituted as appellee.

By the assignment of errors the appellant questions the sufficiency of the complaint, and complains of the action of the court in sustaining a demurrer to the second paragraph of an answer of two paragraphs, and in overruling the appellant's motion for a new trial.

The complaint, omitting its title and the signature of the plaintiff's attorney, was as follows:

"Harriet Stevens, plaintiff, complains of John Philip Drum, defendant, and says that on the -- day of August, 1880, the plaintiff, by a parol contract, purchased of the defendant Philip Drum the following real estate in Wells county, Indiana, to wit: Lot number sixty-one (61), in Curryville, as the same is designated and described on the recorded plat of said town, for the sum of $ 25, and that said plaintiff, under and by virtue of said contract with said John Philip Drum, and by and with his consent, took immediate possession of said premises, and made lasting and valuable improvements thereon, and has ever since held peaceable and quiet possession and control of the same; that long before the commencement of this suit the said plaintiff was ready and willing to pay said purchase-money, and that she offered to pay said defendant Philip Drum the said purchase-money, and demanded of him that he perform his contract by making plaintiff a deed in fee simple for said real estate, which he refused to do, and that plaintiff is still willing to pay said purchase-money, and brings the same here into court for the use of said defendant. Wherefore plaintiff demands that the defendant Philip Drum be compelled by the order and judgment of this court to specifically perform his said contract, or that on his failure or refusal to do so, a commissioner be appointed by the court to make, execute and deliver to the plaintiff a good and sufficient deed in fee simple for said real estate, and other proper relief."

It is objected, on behalf of the appellant, that it was not averred in the complaint that the defendant entered into any agreement or made any promise to convey the real estate, or to do any act which he failed to do.

A court of equity is not without power to require the execution of a deed of conveyance of real estate in an action therefor, though the evidence should not show an express agreement for the execution of a deed. The ground on which a court of equity proceeds, where, to use the common expression, the contract has been taken out of the statute by part performance, is not that there is a valid contract, but that unless the court interpose one party will be enabled to defraud the other.

A parol gift of land may be so far executed that the donee who has been put into possession and has made expenditures for lasting improvement will be entitled to a decree for a conveyance. Lobdell v. Lobdell, 36 N.Y. 327; Freeman v. Freeman, 43 N.Y. 34 (3 Am. R. 657); Pom. Con., sections 130, 131.

Besides, the full ownership of land, the legal title, does not pass by mere delivery; and an agreement to sell land, or a purchase of land, implies an agreement or understanding that the vendor shall do what is necessary to transfer the full ownership, the legal title.

Under the code, it is sufficient for a party to state, in his pleading, the actual facts on which his cause of action or his defence is based. Facts which the law will imply from other facts stated need not be pleaded. A contract may be pleaded according to its legal effect.

The complaint is loosely drawn, and perhaps by motion the plaintiff might have been required to make it more definite, but looking, as a court of equity, to substantial justice between the parties, we think the complaint not liable to the objection made by counsel.

The second paragraph of the answer amounted to nothing more than an argumentative denial. The first paragraph was a general denial, and the issue formed thereby was tried. Therefore, there was no available error in sustaining the demurrer to the second paragraph. This is such a well settled rule of practice in this State that the citation of authority is not needed.

Objection is made to an instruction to the jury, on the ground that in stating therein...