Harter v. Morris

• Decision Date: 24 April 1919
• Docket Number: No. 9730.,9730.
• Citation: 123 N.E. 23,72 Ind.App. 189
• Parties: HARTER v. MORRIS.
• Court: Indiana Appellate Court

72 Ind.App. 189

123 N.E. 23

HARTER

v.MORRIS.

No. 9730.^*

Appellate Court of Indiana, Division No. 2.

April 24, 1919.

Appeal from Circuit Court, Marion County; Louis B. Ewbank, Judge.

Action by J. Edward Morris against Richard R. Harter. From judgment for plaintiff, defendant appeals. Reversed, with instructions.Hall & Campbell, of Rushville, James L. Murray, of Indianapolis, Wm. A. Hughes, of Greenfield, David R. Major, of Columbus, Ohio, and Urban C. Stover, of Indianapolis, for appellant.

Weyl & Jewett, of Indianapolis, for appellee.

NICHOLS, J.

This is a suit in equity by the appellee against the appellant to compel the specific performance of a contract for the exchange of real estate. The appellant demurred to the second amended complaint, which demurrer was overruled, and to which ruling appellant excepted. Appellant then answered by general denial and other special answers to which a reply was filed by the appellee. The cause was tried by the court, and a finding and judgment rendered for appellee decreeing specific performance of the contract sued on. After motion for a new trial which was overruled, the appellant prosecutes this appeal. The errors assigned and relied upon for the reversal of the judgment are:

(1) The court had no jurisdiction over the subject-matter of the action.

(2) The court erred in overruling the demurrer to the second amended complaint.

(3) The court erred in overruling the motion for a new trial.

The second amended complaint filed by the appellee is, in substance, as follows:

On August 17, 1911, the appellant was the owner in fee simple of the following described real estate in Rush county, Ind. (description), containing in all 84.17 acres. On said date appellant made a written offer or proposition to the appellee to exchange said real estate for 360 acres of land owned by the appellee in Starke county, Ind. (description). By the terms of said written proposition appellant agreed to accept the farm of the appellee subject to a $3,000 mortgage due January 1, 1913, and drawing 6 per cent. interest, and it was therein stipulated that the said Harter should retain possession of his farm until January 1, 1913, with the exception that the appellee would be permitted to sow wheat during the fall of 1911, upon any part of the farm of said appellant; appellant was to have possession of said Starke county farm as soon as the deal between appellant and appellee was closed and consummated, and appellant was also by said proposition to give the appellee a first mortgage of $1,800 on the Starke county land in the manner provided for in said proposition; appellee and appellant were each to furnish a good abstract of title brought down to date showing good fee-simple title in said parties respectively, free and clear from any and all liens and incumbrances, except those mentioned in said proposition, and appellant and appellee were to assume and pay the taxes for 1911 on each farm so exchanged. In order to be effective, said proposition was to be accepted by the appellee and his wife on or before 7 o'clock p. m. of August 18, 1911. Appellee and his wife accepted said proposition at 9:30 o'clock a. m. August 18, 1911, and at said time so notified appellant of such acceptance, and such acceptance was indorsed on said proposition and a copy of said proposition sent to said appellant. The contract and acceptance are marked Exhibit A and made a part of the complaint. The Starke county land was worth of the reasonable value of $25 per acre, and the appellant's land was worth of the reasonable value of $110 per acre, and said farms were of such respective values at all times hereinbefore referred to. The Rush county land owned by appellant was at all times referred to of “peculiar” value to the appellee by reason of the location thereof; said land is located near the Indianapolis & Eastern Traction Company's line of railway and on and near the National Road and is of easy access to the city of Indianapolis, in which the appellee resides; that, unless appellee is granted specific performance of this contract, he will suffer irreparable damages and injury which cannot be fully compensated in damages, and appellee has not an adequate remedy at law; that appellee had duly performed all conditions of said agreement on his part to be performed and prior to the bringing of this action tendered to appellant the deed in fee simple of the Starke county land, duly executed and acknowledged by appellee and his wife with covenants of general warranty, and demanded of appellant that he perform his part of said contract by executing to this appellee a deed, mortgage, and note as provided in said contract. Appellant refused and still refuses to perform his part of the contract. Appellee is still willing to comply with his said contract and to deliver said deed for the said Starke county land, and now brings the same into court together with the abstract of title down to date showing a good fee-simple title in appellee, free and clear from all incumbrances for the use of the appellant. There is a demand that the appellant be required specifically to perform said agreement.

Exhibit A, which is the offer and acceptance and which is made the basis of the suit, is as follows:

“Indianapolis, Ind., August 17, 1911.

Mr. J. Edward Morris, City-Dear Sir: I hereby agree to the following exchange of farms and on the basis hereinafter mentioned as follows: I will give you my farm upon which I now reside consisting of 84.17 acres more or less and located about 1 1/4 miles south of Charlottesville, Indiana, and in the northwestern part of Ripley township of Rush county, Indiana, the same being all and the only land now owned by me in said township and county at this time, for your tract of 360 acres of land being the N. E. quarter and the north half of the S. E. 1/4 and the east 1/2 of the N. W. 1/4 and the N. E. 1/4 of the S. W. 1/4 all in section 11, township 35 north, range 1 west, Washington township, Starke county, state of Indiana.

You are to accept my farm subject to a $3,000 mortgage due January 21. 1913, and drawing 6 per cent. interest and allow me possession until January 1, 1912, with the exception that you will be permitted to sow wheat this fall on any part of the farm you desire.

It is understood that I am to have possession of the Starke county farm as soon as the deal is closed and I am to give you a first mortgage of $1,800 on the land drawing 6 per cent. from date of closing, said note to mature January 21st, 1913, and to provide the usual prepayment privileges.

“It is understood that each of us are to furnish good abstract brought down to date showing good fee-simple title in us free and clear of any and all liens and incumbrances whatsoever except those herein mentioned and except also that each of us agree to assume and pay the taxes of 1911 due and payable in 1912 on each farm.

It is also understood that conveyances are to be made by good and sufficient general warranty deed properly executed.

This proposition to be effective must be accepted by you and your wife on or before 7:00 o'clock p. m. August 18, 1911.

R. R. Harter.

Accepted 9:30 a. m. August 18, 1911.

J. Edward Morris.

Isa Morris.”

The demurrer to this complaint was for want of facts to constitute a cause of action against the appellant.

[1] Appellee contends that appellant has presented no question for the consideration of this court for the reason that he failed to comply with clause 5, rule 22 (55 N. E. vi) of the court in the preparation of his brief. While it is true that appellant has not strictly followed said rule, still his brief contains enough, and is so arranged as to advise the court of the questions presented. A goodfaith effort is shown, and the purpose of the rule has been served. Repp v. Indianapolis, etc., Traction Co., 184 Ind. 675, 111 N. E. 614;Howard v. Adkins, 167 Ind. 184, 78 N. E. 665;Foote v. Foote, 53 Ind. App. 673, 102 N. E. 393;Berkey v. Rensberger, 49 Ind. App. 226, 96 N. E. 32;Geisendorff v. Cobb, 47 Ind. App. 573, 94 N. E. 236.

[2][3][4] It has been expressly held by both the Supreme and Appellate Courts of this state that a complaint for specific performance to be sufficient should allege facts that would have been sufficient upon a default to enable the court to draft the decree from its averments. Burke v. Mead, 159 Ind. 252, 259, 64 N. E. 880;McCauley v. Schatzley, 44 Ind. App. 262, 88 N. E. 972. Applying this principle of law to the complaint in suit, we must hold that it is insufficient to withstand the appellant's demurrer. The complaint is based upon a contract that provides, among other things, that an $1,800 first mortgage is to be executed by appellant to appellee which should draw 6 per cent. interest from date of closing to maturity, January 21, 1913, and that such note should provide for “the usual prepayment privileges.” We are not prepared to say what such usual prepayment privileges are. Sometimes the privilege granted is to make prepayment at the will of the mortgagor, sometimes to make payments at interest paying dates, sometimes quarterly, or semiannually, or annually. There is no certain amount which appellee will be permitted to prepay. The contract is certainly indefinite as to the privileges of payment that should be granted to appellant, and we do not see how the court in rendering a decree for specific performance upon default could have determined upon the privilege to be extended. If he could not do so, then the complaint does not measure up to the requirements of the authorities cited. It is not necessary for the purpose of the demurrer to the complaint that we shall decide that the contract is an illegal contract, or that there is no remedy at law under it. We do decide, however, that more certainty is required in a contract where specific performance is invoked than is required where the remedy is sought at law by way of damages. The contract may be legal and yet...