Junk v. Barnard

• Decision Date: 19 December 1884
• Docket Number: 11,003
• Citation: 99 Ind. 137
• Parties: Junk et al. v. Barnard
• Court: Indiana Supreme Court

99 Ind. 137

Junk et al. v. Barnard

No. 11,003

Supreme Court of Indiana

December 19, 1884

From the Cass Circuit Court.

T. J Tuley, S. T. McConnell, R. Magee and D. B. McConnell, for appellants.

M Winfield and C. E. Taber, for appellee.

OPINION

Bicknell C. C.

The appellee brought this suit against the appellants upon a title-bond, dated September 25th, 1876, which recited a sale of land by the appellants to the appellee, and the terms of the sale, and was conditioned for the execution of a warranty deed by the appellants to the appellee within three months after its date. The complaint averred payment of the purchase-money. There was a provision in the bond that the grantee accepted the property with the understanding that she was to get possession of it from the tenant in possession. The breaches alleged in the complaint were that the appellants, although requested, have not made the warranty deed, and that they never had title to the land.

The defendants filed an answer in four paragraphs and also a counter-claim, viz.:

1. The general denial.

2. That the plaintiff's claim was fully paid and satisfied before suit brought.

3. That the plaintiff's claim was wholly without consideration.

4. That at the time of the sale the defendants had never seen the land, and did not know who had possession of it, except by the statements of the plaintiff; that the plaintiff came to them and proposed to buy the land, claiming to be acquainted with the title, and with the claim of one Cook the then tenant in possession; that defendants told the plaintiff they knew nothing of the title; that they had taken the land in payment of a doubtful debt, without any inquiry as to title or possession; that plaintiff replied that she knew about the title and knew that said Cook had no title and was in possession unlawfully; that the parties then agreed that the plaintiff should give the defendants the notes mentioned in the bond, and that upon payment according to the bond, the defendants should give plaintiff a quitclaim deed for the land; that the defendants never agreed to give a warranty deed, but that, by the mutual mistake of the parties, the agreement as to a quitclaim deed was omitted in the bond and instead thereof the provision for a warranty deed was inserted; that by the agreement the plaintiff was not to be entitled to any deed until the notes mentioned in the bond were paid, and even then was to be entitled to a quitclaim deed only; that afterwards, the mistake being discovered, the parties compromised the plaintiff's claim, and the plaintiff agreed to surrender the bond and take a quitclaim deed, and the...