Dwenger v. Branigan

• Decision Date: 26 April 1884
• Docket Number: 10,821
• Citation: 95 Ind. 221
• Parties: Dwenger, Bishop, v. Branigan
• Court: Indiana Supreme Court

95 Ind. 221

Dwenger, Bishop, v. Branigan

No. 10,821

Supreme Court of Indiana

April 26, 1884

From the Tippecanoe Circuit Court.

The judgment is affirmed with costs.

T. B Ward and W. P. Breen, for appellant.

R. P Davidson and J. C. Davidson, for appellee.

Howk C. J. Zollars, J., was absent when this cause was considered and decided.

OPINION

Howk C. J.

This suit was commenced by the appellee against the appellant, in the Boone Circuit Court. Afterwards, upon appellee's request, the venue was changed to the court below. There the cause was put at issue and tried by a jury, and a general verdict was returned for the appellee, assessing his damages at $ 1,240, "and that the same is a lien on the lot described in the complaint." With their general verdict the jury also returned into court their special findings on particular questions of fact submitted to them by the court, with the consent of the parties. Over the appellant's motion for judgment in his favor on the special findings of fact, notwithstanding the general verdict, and his motion for a new trial, the court rendered judgment against him for the appellee upon and in accordance with the general verdict.

The first three errors assigned by the appellant in this court are the overruling of his demurrers to each of the second, third and fourth paragraphs of appellee's complaint, for the alleged insufficiency of the facts therein to constitute a cause of action. Appellee's complaint contained four paragraphs; but, with leave of the court, the first paragraph was withdrawn before the trial of the cause.

In the second paragraph of his complaint the appellee alleged that, on the 4th day of January, 1880, at the special instance and request of the appellant, the appellee furnished appellant the sum of $ 1,500, for the purpose of being invested by him in the real estate in Boone county, Indiana, described as lot No. 3, in block No. 13, in the town of Lebanon; that at the time the appellant so received such sum of $ 1,500, it was mutually agreed between him and the appellee that the same should be a special lien in appellee's favor on said real estate; that, because of such agreement and for no other or different reason, the appellee furnished the appellant the said sum of money, under said agreement, and invested the same in such real estate, and thereupon a deed thereof was made to the appellant; that the appellant still held such real estate, subject to such claim and lien of the appellee; that the appellant had failed to repay to the appellee the said sum of $ 1,500, or any part thereof, but the same was due and remained unpaid; that at the time the appellee furnished and paid the said sum of money as aforesaid, and at the time of purchase of such real estate and of the execution of said deed, it was agreed by and between appellee and the appellant that the appellee should have, hold and retain the equitable title in and to said real estate, and have and hold his special lien on the same for the said sum of money, until the same should be repaid to him. Wherefore the appellee demanded judgment for the sum of $ 1,500, and that the same be adjudged and decreed a lien on such real estate, and that the same be sold, etc.

In the third paragraph of complaint appellee averred that, on January 4th, 1881, it was mutually agreed by and between him and the appellant, one Timothy Ryan acting as agent for and on behalf of appellant, that appellee should furnish the appellant, through his agent, Ryan, the sum of $ 1,500, for the purpose of purchasing the same real estate described in the second paragraph, which real estate and the dwelling-house thereon were to be so purchased for the use of the congregation of the church of St. Charles Borromeo, of the Catholic Church of Lebanon, as a parsonage and dwelling for the priest of such church; that it was further mutually agreed by and between appellee and appellant, said Ryan acting as appellant's agent in said agreement, that for and in consideration of appellee's procuring for appellant, and letting him have the said sum of money, and for no other or different consideration, the appellant, by his agent, Ryan, would purchase said real estate for the purpose aforesaid, and appellant should take the deed of such real estate in his own name; that it was also agreed by and between appellee and appellant, and his agent, Ryan, at the time of the payment by appellee of said sum as purchase-money of said real estate, and at the time of the execution of said deed to appellant, that the appellee should have and hold an equitable title in and to such real estate, and a special lien thereon, until such sum of money was repaid to him, and the appellant was to hold such real estate in trust, and for the use of appellee, until he should be repaid said sum of money. This paragraph then stated the appellee's performance of his part of the several mutual agreements recited, and the failure of the appellant, and of his agent, Ryan, to comply with such agreements, substantially as the same facts were stated in the second paragraph of complaint.

In the fourth paragraph of his complaint the appellee states the same cause of action, and demands the same relief as in the previous paragraphs, but in somewhat different language. We take the following summary of the fourth paragraph from the brief of appellant's counsel:

"The fourth paragraph alleges that Ryan was priest, and appellant bishop, etc., as in third paragraph; that Ryan wished to purchase the lot described for a parsonage, and made said purchase, the deed being taken to appellant; that Ryan, not having the necessary means, applied to the appellee for help; that appellee, as agreed with Ryan, was to furnish the money, 'in whole or in large part,' to Ryan to pay for the lot, the deed to be made to the appellant; but the appellee was 'to stand in relation of vendor,' and to have a vendor's lien on the lot; that Ryan bought the lot for $ 1,500, but took it subject to a mortgage of $ 250, which was to be deducted from the purchase-money; that, in order to raise the money, the appellee procured a loan of $ 1,500 from the bank, and gave the money...