Landers v. Beck

• Decision Date: 12 December 1883
• Docket Number: 9979
• Citation: 92 Ind. 49
• Parties: Landers v. Beck et ux
• Court: Indiana Supreme Court

92 Ind. 49

Landers v. Beck et ux

No. 9979

Supreme Court of Indiana

December 12, 1883

From the Hamilton Circuit Court.

Judgment reversed.

T. J Kane, T. P. Davis, C. Byfield and L. Howland, for appellant.

F. M Trissal and R. R. Stephenson, for appellees.

OPINION

Elliott J.

It is alleged in the complaint of the appellees, that they are husband and wife; that the husband Francis M. Beck, owned land of the value of $ 15,000, personal property of the value of $ 4,000, and a judgment for $ 1,193; that he was indebted to a firm, of which the appellant was a member, in the sum of $ 2,500, and that on the 14th day of September, 1876, a verbal agreement was made between him and the appellant. This agreement is thus set forth in the complaint, viz.: "In consideration that the plaintiffs would join in the execution of a deed, conveying the real estate aforesaid, and would transfer said personal property, and assign said claim on Joseph A. Beck, to him, said Landers, that he would hold the title to said land, so conveyed, apparently as an absolute conveyance, but in reality merely as a security for the indebtedness owing to him, said Landers, and the firm of which he was a member, and in trust for the plaintiff; that after such conveyance the plaintiff should remain in possession of and cultivate said land and raise stock thereon, and he, said Landers, would advance money and furnish stock to be kept and fed thereon, and out of the proceeds of said stock, and the proceeds of the personal property and judgment aforesaid, together with such other means as might be obtained from any other sources by said Beck, after ample time had been given him for the accumulation of such profits, the realization of such proceeds and the acquirement of such means, the indebtedness to said Landers should be paid; and said Landers should pay off a judgment against said Beck in favor of one Lunhom, and should also furnish to and aid and assist said Beck in raising any sums of money necessary to pay off and discharge any and all liens against his property, and to pay all his debts, thereby preventing his property from being levied upon, taken, or sold. It was also then agreed that after full payment had been made to said Landers, and the firm of which he was a member, and after all the other debts owing by Beck had been satisfied and discharged, and after said Landers had been reimbursed in full, with interest for all moneys advanced, said Landers is to reconvey all the real estate aforesaid to the plaintiffs." It is averred that the land was conveyed and the personal property and judgment transferred as stipulated in the oral contracts; that Beck, in all other respects, performed his agreement, "except that he was unable to pay his other debts in full, because of the failure and refusal of Landers to furnish money and provide means to enable him so to do, and that Landers, about one year after receiving the deed to the land, openly repudiated and disavowed the agreement, and without the consent of the plaintiffs conveyed all of the real estate to the defendant Gustavus H. Voss, and has thereby put it out of his power to convey a good and valid title to the plaintiffs."

It is well settled that if a complaint states such facts as entitle the plaintiff to some relief, in the form of action adopted, it will be held good on demurrer. Bayless v. Glenn, 72 Ind. 5, and cases cited.

The question as to the amount of recovery does not arise upon a demurrer to a complaint; for, if the facts stated constitute a cause of action, the measure of damages is to be determined at a subsequent stage of the proceedings.

The complaint entitles the appellees to some relief because it sets forth a valid contract, shows performance on their part, and a breach on the part of appellant.

The title to the land did not pass from the appellees for the reason that the deed although absolute on its face was a mortgage, and a mortgage does not convey title. It creates a lien, but conveys no estate. It, therefore, appears on the face of the complaint, that the title still remained in appellees burdened with appellant's lien, and that there was no agreement to convey land within the meaning ascribed by the courts to the statute of frauds. When the conveyance was executed, it became, according to the complaint, a mere mortgage, and the case is within the rule that a deed absolute on its face may be shown to be a mortgage.

Where all that part of a contract which is within the statute is performed, it is taken out of the statute and the contract may be enforced. In the case before us the complaint shows a conveyance by deed to Landers of the land and his promise yielded as a consideration for the conveyance, to perform certain acts, and this promise is enforceable. It would be so even though the appellees had not been the original owners of the land. Tinkler v. Swaynie, 71 Ind. 562; Reyman v. Mosher, 71 Ind. 596; Schenck v. Sithoff, 75 Ind. 485; Arnold v. Stephenson, 79 Ind. 126; Humphrey v. Fair, 79 Ind. 410; Felton v. Smith, 84 Ind. 485, 491; Stephenson v. Arnold, 89 Ind. 426; Butt v. Butt, 91 Ind. 305. We need not and do not decide to what relief the...