Green v. Groves

• Decision Date: 15 February 1887
• Citation: 10 N.E. 401,109 Ind. 519
• Parties: Green v. Groves and others.
• Court: Indiana Supreme Court

109 Ind. 519

10 N.E. 401

Green

v.Groves and others.

Supreme Court of Indiana.

February 15, 1887.

Appeal from circuit court, Hendricks county.L. M. Campbell and H. E. Smith, for appellant. Duncan, Smith & Wilson and Sullivan & Jones, for appellees.

ZOLLARS, J.

The facts stated in appellant's complaint, so far as they are essential here, are as follows:

In 1876 appellant's husband, Morton D. Green, was the owner in fee of a tract of land, and also three lots in Brownsburg. At that time he was indebted to his kinsman and close friend, Morton M. Groves, in the sum of $2,000, which debt was evidenced by a promissory note. He was also indebted to other persons, his whole indebtedness being more than he was able to pay. In November of that year Groves, desiring to have his debt secured, and thus acquire a preference over other creditors, applied to appellant and her husband, and requested them to give him a mortgage upon the real estate above mentioned to secure his debt, being all the real estate that Green owned. At the time he made this request he promised appellant that, if she would join in the mortgage with her husband, he, (Groves,) in the event he was required to foreclose the mortgage, and if he should purchase the real estate at the sheriff's sale, would, after getting a sheriff's deed upon demand, convey to her (appellant) the said lots. As a further inducement to her to join in the execution of the mortgage, Groves represented to her that she would, by the method proposed, become invested with the title to a portion of the real estate equal to one-third of the whole at less trouble and expense than she could by any other means; that the expense of the execution of the mortgage, and the foreclosure of the same, would be no greater by reason of her joining in the execution; and that, finally, being the owner of the real estate by a sheriff's sale and deed, the cost of executing a deed to appellant for the lots would be the only expense incurred; and that, if she should not so join in the mortgage, in order to get her one-third interest in the land set apart, it would be necessary to incur the expense of a partition suit. Having full confidence in the integrity of Groves, and in his promise, and relying thereon, appellant joined with her husband in the mortgages that covered the land and lots above mentioned. At that time, and ever since, appellant was and has been in the actual possession of the lots.

In May, 1878, Groves instituted a suit for the foreclosure of the mortgages. At the time he commenced the suit, and at the time the summons was served upon appellant, he again promised and agreed with her that, if she would allow a decree of foreclosure to be made upon default, he would in good faith, and for her use, benefit, and protection, carry out his original promise to convey to her by deed the said lots. Relying again upon his promise, she made default, the mortgage was foreclosed, and a decree for the sale of real estate was rendered. In August, 1878, the real estate was sold under the decree, and Groves purchased it upon a bid of $2,100, being the full amount of his debt, with costs. At the time of the sale the land was worth $2,500, and the lots $800. At the expiration of a year after the sale, Groves received a sheriff's deed, and within a very short time thereafter, and before having an opportunity to make the conveyance of the lots as agreed upon, he died intestate, leaving appellees herein as his minor children and heirs at law. Thus the heirs of Groves hold the real estate, of the value of over $3,000, for a debt of appellant's husband of $2,000 originally, and she has nothing. The prayer of the complaint is for a decree for a specific performance of contract between her and Groves, for the appointment of a commissioner to convey the said lots to her, and that her title thereto be quieted as against any claims by appellees, “and she prays for general relief in the premises.”

A demurrer was sustained to the complaint, and a judgment for costs was rendered against appellant. From that judgment she appealed, and assigns as error here the ruling of the court in sustaining the demurrer.

The case, as made by the complaint, is clearly not for a rescission of the contract between appellant and Groves, and the recovery of what she conveyed to him, nor for money damages. This is manifest from several considerations.

In the first place, she released her right in the land and the lots; the complaint has reference to the lots alone. The complaint does not treat the contract between appellant and Groves as void or voidable, but, on the contrary, is constructed upon the theory that it is valid and enforceable, and may and ought to be specifically enforced. The prayer is not that appellant may have restored to her what she parted with by her deed to Groves, not that the one-third of the lots and land may be set off to her, nor that she may recover money damages by reason of his bad faith in the non-fulfillment of the contract, but that the contract may be enforced according to its terms. In short, the action is upon the contract. The prayer “for general relief in the premises” must be held to have relation to the lots.

The theory of the complaint, as we have said, is that appellant is entitled to recover the lots. If, upon that theory, it is insufficient, the demurrer thereto was properly sustained. Cottrell v. Ætna Life Ins. Co., 97 Ind. 311;Western U. T. Co. v. Reed, 96 Ind. 195, 198;Root v. Erdelmeyer, 37 Ind. 225.

In the second place, the action cannot be said to be for money damages, because the proper parties are not shown to be before the court. Under exceptional circumstances, cases may be maintained against the heirs which are ordinarily to be prosecuted against the administrator. This is not shown to be such a case. For aught that appears, there may be an administrator of Groves' estate, or, if not, one ought to be appointed. See Schneider v. Piessner, 54 Ind. 525;Bearss v. Montgomery, 46 Ind. 544;Walpole v. Bishop, 31 Ind. 156.

Does the complaint, then, make a case for a specific performance of the contract to convey the lots to appellant? There being no averment that the contract between appellant and Groves was in writing, it must be assumed that it rested in parol. Langford v. Freeman, 60 Ind. 46;Carlisle v. Brennan, 67 Ind. 12. The statute of frauds and perjuries (section 4904, Rev. St. 1881) provides that no action shall be brought upon any contract, for the sale of lands, unless the promise, contract, or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged there with, or by some person thereunto by him lawfully authorized. The contract set out in the complaint is clearly within the statute of frauds. Within the sense, spirit, and purpose of that statute, it is a contract for the sale of lands. At the time the contract was made appellant's husband owned the land and lots. Had she not signed the mortgage, upon its foreclosure, and a sale of the land and lots under the decree, she would have become the owner in fee of the undivided one-third thereof, under the statute of 1875; until such sale, she had but an inchoate interest in the lands and lots. The release of that inchoate interest, however, was a sufficient consideration for the promise by Groves. Jarboe v. Severin, 85 Ind. 496, and cases there cited. The release of that inchoate interest in the land is the alleged consideration for the agreement on the part of Groves to acquire title to the lots, and convey them to appellant. In short, the substance of the agreement is, in the sense of the statute of frauds, that Groves should sell the...