Ice v. Ball

• Decision Date: 13 May 1885
• Docket Number: 11,896
• Citation: 1 N.E. 66,102 Ind. 42
• Parties: Ice v. Ball et al
• Court: Indiana Supreme Court

1 N.E. 66

102 Ind. 42

Ice v. Ball et al

No. 11,896

Supreme Court of Indiana

May 13, 1885

From the Henry Circuit Court.

The judgment is affirmed, with costs.

J Brown and W. A. Brown, for appellant.

D. W Chambers and J. S. Hedges, for appellees.

OPINION

Howk, J.

In this case the appellant, Ice, the plaintiff below, alleged in his complaint that, on the 25th day of August, 1882, he and the appellees, Sarah Ball, Sarah A. House and Thomas House entered into an agreement whereby the appellees agreed to convey to appellant, by deed in fee simple, certain described real estate in Henry county, Indiana, in consideration whereof the appellant agreed to convey to appellee Sarah A. House, the wife of Thomas House, and daughter of Sarah Ball, certain other described real estate, in the same county and State; that at the date of such agreement there was a subsisting and outstanding mortgage upon the real estate, so agreed to be conveyed to appellant, for the sum of $ 340, with eight per cent. interest, executed by the appellees to the State of Indiana for the use of its common school fund, dated August 19th, 1881; that it was also agreed by the appellees, as a part of such contract, that they would cause such mortgage to be released from the land, so agreed to be conveyed to appellant, by either paying it off or by causing such mortgage to be removed and placed upon the land so agreed to be conveyed by appellant to appellee Sarah A. House; that to effectuate the latter part of such agreement it was further agreed that appellant should convey by warranty deed, in fee simple, the real estate to be conveyed by him to appellee Sarah A. House, and that the appellees would make a like conveyance to appellant of the land so to be conveyed to him, and that appellee Sarah A. House would withhold the recording of her deed until after appellees should have effected the removal or cancellation of such mortgage and caused the land so conveyed to the appellant to be released therefrom; that, in pursuance of such agreement, the appellant and the appellees executed to each other their warranty deeds for the respective tracts of land so agreed to be conveyed, and that each party took possession of the land so conveyed to him or her, and had since continued in possession thereof; that appellant had fully complied with his part of such agreement, but that the appellees had in part broken their agreement, in this, that they caused their deed to be recorded upon its delivery to Sarah A. House, and they failed to pay off the aforesaid mortgage, or to cause it to be in anywise released, or to place such encumbrance upon the land so conveyed to Sarah A. House, instead of the land so conveyed to appellant. Wherefore appellant demanded judgment for the amount of such school fund mortgage, and interest, to wit, for $ 350, and that such judgment be declared a lien, as for purchase-money, upon the lands so conveyed to Sarah A. House, and that a decree should be rendered, to be enforced and collected as other judgments were enforced and collected, whenever the appellant should have paid off such school fund mortgage, and for other proper relief.

The cause was put at issue and tried by a jury, and a verdict was returned for the appellees, the defendants below, and over appellant's motion for a new trial judgment was rendered against him for appellees' costs.

A number of errors are assigned here by the appellant, but of these we will consider such only as his counsel have discussed in their elaborate briefs of this cause. It is first claimed in argument, on behalf of the appellant, that the court erred in overruling his demurrers to the third and fourth paragraphs of appellees' answer. In the third paragraph of their answer the appellees said that, at and before the time of the exchange of lands mentioned in the complaint, and as a part of the consideration of the conveyance to appellees, the appellant guaranteed that the land he was about to convey to the appellees was free from all encumbrances, and that the title thereto was good, and such a title that the officers, who had charge of and loaned what was generally known as the common school fund, would take as security for a loan of such fund to the same amount as that of the mortgage mentioned in appellant's complaint; that appellant would cause such officers to make such loan, and that the mortgage mentioned in his complaint should remain on the land conveyed to appellant until he could procure the transfer of such mortgage to the land conveyed by him to the appellees, which he failed and refused to do. And the appellees said that appellant had not a good and unbroken chain of title to the land conveyed by him to appellees, and...