Linn v. Barkey

• Court: Indiana Supreme Court
• Writing for the Court: Perkins, J.
• Citation: Linn v. Barkey, 7 Ind. 56 (Ind. 1855)
• Decision Date: 28 November 1855
• Parties: Linn v. Barkey

7 Ind. 56

Linn v. Barkey

Supreme Court of Indiana

November 28, 1855

ERROR to the Marshall Circuit Court.

The decree is affirmed with costs.

J. B Niles and A. L. Osborn, for plaintiff.

J. W Chapman, for defendant.

OPINION

Perkins J.

Bill by Barkey against Linn, for the specific performance of the following condition of a bond:

"The condition of the above obligation is such: whereas the above bounden Solomon Linn has sold unto Jacob Barkey a certain lot of land known and particularly described as follows: the east half of the southwest quarter of section number eleven township number thirty-three north, of range number three east, containing eighty acres, more or less, for 300 dollars, for which the said Barkey has paid the said Linn 200 dollars. Now, if the said Barkey does well and truly pay to the said Linn 100 dollars, said sum being in three promissory notes, one for 30, one for 50, and one for 20 dollars, then the said Linn, on reasonable request, at his proper cost, shall convey the above lot of land to the said Barkey by a good and indefeasible inheritance in fee simple, and by the said Linn so doing, then this obligation," &c. "Solomon Linn. Attest: James O. Parks."

Barkey paid the three notes mentioned in the bond, and Linn tendered him a deed, with covenants as follows:

"That he will forever warrant and defend the same [the premises conveyed,] with all the appurtenances, unto said Barkey, his heirs and assigns, against the lawful claims of all persons whatever; excepting, however, the said grantors are not in any way liable for any claim of alimony or dower which the wife of Cyrus Cott, the grantor of said grantors, may be entitled to," &c.

This deed Barkey refused to accept, on the ground that it was not in compliance with the condition of the bond, that requiring, as he asserted, a deed with full covenants; and he filed his bill to procure a satisfactory conveyance.

Linn defended, on the ground--

1. That the language of the bond did not require a deed with full covenants; and

2. That if it did, there was a mistake in drafting it, rendering its requirements more comprehensive than was the agreement between the parties.

Upon the second point, a number of depositions were taken, which, however, the chancellor thought failed to establish the mistake in the bond, and, being of opinion that its terms required a deed with full covenants, he decreed, on the submission of the cause to him, the execution of such a deed.

We have no doubt as to the correctness of the chancellor's decree. A fair construction of the language of the bond, makes it demand a deed with full covenants. See Leonard v. Bates, 1 Blackf. 172, part of the opinion on p. 174, and Clark v. Redman, same vol., p. 379.--Dawson v. Shirley, 6 Blackf. 531.

The evidence as to the mistake in the bond, is very conflicting, and if the rule governing the action of this Court in cases at law, under such circumstances, is to prevail in this, a case in chancery, of course we have nothing to do but affirm the conclusion of the Court below. That this rule is to prevail, we are told by counsel for Barkey, on the authority of Calkins v. Evans, 5 Ind. 441; while, on the other hand, counsel for Linn cite us to Baker v. Leathers, et al., a case in which the Supreme Court reversed the decree of the chancellor upon the weight of conflicting evidence, as establishing a different rule. 3 Ind. 558.

It is the settled practice in the English and American chancery Courts, to decide causes upon appeal on the weight of the evidence, without respect to the conclusion of the inferior Courts upon that evidence. Gallion v M'Caslin, 1 Blackf. 91, and [7 Ind. 58] note 1, where the practice is stated, and authorities cited. Pell v. Farquar, 3 Blackf. 331.--Gafney v. Reeves, 6 Ind. 71, and cases...