Judy v. Jester Et Ux

• Decision Date: 11 December 1912
• Docket Number: No. 7,775.,7,775.
• Citation: 100 N.E. 15,53 Ind.App. 74
• Parties: JUDY v. JESTER et ux.
• Court: Indiana Appellate Court

53 Ind.App. 74

100 N.E. 15

JUDY

v.JESTER et ux.

No. 7,775.¹

Appellate Court of Indiana, Division No. 1.

Dec. 11, 1912.

Appeal from Circuit Court, Clinton County; Joseph Combs, Judge.

Action by William P. Jester and wife against John F. Judy and another. From a judgment for plaintiffs, defendant Judy appeals. Affirmed.

Stansbury & Billings, of Williamsport, Wilson & Quinn, of La Fayette, and Sheridan & Gruber, of Frankfort, for appellant. Will R. Wood and Thompson & McAdams, all of La Fayette, for appellees.

FELT, J.

This is an action for damages, brought by appellees against appellant and one Isaac Alonzo Barkhurst for alleged fraud in the exchange of certain real estate. The complaint is in two paragraphs. A separate demurrer for want of facts was filed to each paragraph, and overruled. Issues were joined by a general denial. Upon motion the cause was venued from the Tippecanoe superior court to the Clinton circuit court, where the case was tried by the court. A special finding of facts was duly made, and conclusions of law stated thereon in favor of appellees for $2,707, that appellee Elizabeth Jester had an inchoate interest in the Tippecanoe county real estate, also that the law was with said Barkhurst, and that he have judgment against appellees for his costs. A motion for new trial was overruled, the court rendered judgment against appellant in favor of appellees, and this appeal was prayed and granted.

The errors relied upon for reversal are: (1) The overruling of the demurrers to each paragraph of the complaint. (2) Neither paragraph of the complaint states facts sufficient to constitute a cause of action against appellant. (3) Error of the court in its conclusions of law. (4) The overruling of appellant's motion for new trial.

The complaint is extremely long, and in substance charges in each paragraph: That appellees were husband and wife. That on November 9, 1906, and prior thereto, Wm. P. Jester was the owner in fee simple of 117 acres of real estate in Tippecanoe county, Ind., of the value of $100 per acre, on which there was a mortgage for $5,860. That at said time appellant owned a large amount of land in Starke county, Ind. That appellant, for the purpose of cheating and defrauding said appellee out of said land in Tippecanoe county, pretended and represented to him that said lands in Starke county were all first-class agricultural lands, composed of black loam, with a clay subsoil, and suited to the raising of all kinds of grain. That, in furtherance of said scheme to cheat and defraud said Jester out of his land, appellant induced him to go to Starke county with him, and when there took him upon a portion of his land which appeared to said Jester to be the kind of land represented to him by appellant. That before leaving said lands appellant expressed a desire to go to another tract, which he claimed to own, for the purpose of seeing some tenants living thereon, and invited Jester to go along, which he did. That while upon said last-mentioned tract of land appellant, in furtherance of his scheme to cheat and defraud appellee out of his said lands, called his attention to a small portion of the land in their immediate presence, and said to him that said lands were the most fertile in all northern Indiana, and the entire tract of 210 acres was similar to and as good as the land in their immediate presence, and was worth $75 per acre. That after leaving said lands, and on their way back to the town of North Judson, Ind., appellant proposed to trade his said 210 acres of land for the land of Jester in Tippecanoe county. That this was the first information of the desire or intention of appellant to trade said lands that appellee received. That in conversation with reference to said trade appellant repeatedly represented said 210 acres to be first-class land, fit in every particular for raising all kinds of grain. That all of it was as good as that upon which they were at the time Jester's attention was called to the soil. That appellant, in furtherance of his scheme to cheat and defraud appellee, proposed to sell him said 210 acres of real estate upon the following terms: Appellee to assume and pay a mortgage thereon of $4,400, and to execute to appellant a purchase-money mortgage upon said lands for $5,129.75, due 10 years after date, interest payable annually at 6 per cent. Appellee Jester, his wife joining him therein, to sell and convey by warranty deed to appellant his said lands in Tippecanoe county, subject to the mortgage thereon for $5,868. As a further consideration said Jester was to sell and deliver to appellant all his personal property at the time upon his land in Tippecanoe county, except the corn, of the value of $1,000. That appellee believed said representations to be true and relied upon the same, and, being deceived thereby, entered into a written contract, on November 9, 1906, with appellant upon the terms aforesaid. That the trade was thereafter carried out, and warranty deeds executed as agreed by the parties, which appellees were induced to execute by the fraud of appellant aforesaid. That between the date of said contract and the execution of the deeds appellee had no opportunity to examine said lands, which were situate about 70 miles from his home. That he relied upon and believed said representations made by appellant to be true with reference to the character and value of said land. That in truth and in fact, at the time said contract was made and the deeds executed, said Starke county lands were not worth over $10 per acre. That the soil was not fit and suitable for agricultural purposes, as represented by appellant, and was not over the entire tract as shown to appellee at the place and time they visited the farm, and there was not over 2 or 3 acres of such soil. That the remainder of the 210 acres was practically worthless for agricultural purposes, was composed of quicksand. There was no clay subsoil, and no black loam on top, as represented by appellant. That appellee Jester was not aware of said fraud practiced upon him until some weeks after the trade had been consummated, and not until he went to the place in the winter of 1906 with a gentleman who desired to rent the farm. That he immediately thereafter called upon appellant and demanded of him a rescission of the contract and a reconveyance of said properties, which demand was refused by him. That at this time appellant said he would aid and assist appellee in making a good trade of the Starke county lands. That appellant conspired with one Alonzo Barkhurst to further cheat and defraud appellee by obtaining from him said Starke county lands, at a time when said Jester was in a distressed state of mind by reason of his disappointment occasioned by the fraud already practiced upon him by appellant. That for the purpose of carrying out his design to defraud appellee out of said lands in Starke county, appellant transferred four town lots to one Courtwright, the said Courtwright pretending to exchange said town lots for five tracts of land in Georgia, containing in all 2,450 acres. That in order to conceal his identity in the transaction, appellant caused the deed for the lands in Georgia to be executed to Alonzo Barkhurst, and appellant then caused Barkhurst to approach Jester and propose a trade of said Georgia lands for his Starke county farm. That said Barkhurst had no interest in said land, but was acting for and on behalf of appellant, and so acting did approach appellee and represented that the Georgia land was worth $10 per acre, and that the title was good in him, and presented an abstract, which did show title as represented. That appellant offered to assist appellee in said trade, and examined said abstract, and pronounced the title good, and, representing that he was a friend to appellee, advised him to make the trade, and said he was well acquainted with the men who had conveyed the land to Barkhurst, and that in his opinion it was an elegant trade to make. That he had some knowledge of the land in Georgia. That appellee relied upon said statements and representations of appellant and said Barkhurst, and believed them to be true, and, acting upon the same, he and his wife entered into a contract to make said trade. That thereafter, on May 4, 1907, warranty deeds were executed between said parties conveying said properties. That appellees sent their deed to the proper office in Clinton, Ga., for record, and thereupon discovered for the first time the fraud that had been practiced upon them with reference to the Georgia lands. That the abstract presented to them was false, forged, and counterfeited. That appellant, through the instrumentality of said Barkhurst, pretended to convey said lands to appellees when in fact they never belonged to Barkhurst, to appellant, or their pretended grantors. That appellant had full knowledge of all said facts and circumstances, knew the title to said Georgia land was not in Barkhurst and was fraudulent, that said lands were not as represented, and knowingly and fraudulently conspired to cheat and defraud appellees out of their said lands by the means aforesaid. That when confronted with the facts relating to the fraud so practiced upon appellees with reference to said Georgia land, appellant again offered to assist appellees to dispose of the said lands, but appellees refused to attempt so to do. That appellees by reason of said fraud and conspiracy have been damaged in the sum of $8,000. Prayer, that said mortgage notes given by appellees as aforesaid be canceled, that appellees recover damages in the sum of $8,000, and that the judgment be declared a lien upon said land in Tippecanoe county, Ind., and for all proper relief.

The court found the facts substantially as alleged in the complaint, and the details thereof need not be stated here, but among them are the following: That the business of appellee, William P. Jester, was and for many...