Lowry v. Downey

• Decision Date: 26 April 1898
• Docket Number: 18,549
• Citation: 50 N.E. 79,150 Ind. 364
• Parties: Lowry v. Downey et al
• Court: Indiana Supreme Court

50 N.E. 79

150 Ind. 364

Lowry v. Downey et al

No. 18,549

Supreme Court of Indiana

April 26, 1898

From the Howard Circuit Court.

Affirmed.

L. J Kirkpatrick, J. F. Morrison and T. C. McReynolds, for appellant.

John E Moore and Freeman Cooper, for appellees.

OPINION

Jordan, J.

Appellees filed in the lower court a complaint in two paragraphs against the appellant, for the recovery of money, and to enforce a vendor's lien against the real estate described in the complaint. Appellant demurred to each of these paragraphs, which demurrer was overruled and exception duly reserved. There was an answer and reply filed by the parties respectively, and the issues as joined were tried by the court, and by request there was a special finding of facts and conclusions of law thereon, upon which the court, over appellant's exceptions, and over her motion for a new trial, rendered judgment in favor of appellee for $ 160.00, and for a foreclosure of the vendor's lien.

The errors assigned are: (1) That the court erred in overruling the demurrer to each paragraph of the complaint; (2) that the court erred in its conclusions of law; (3) in overruling the motion for a new trial.

We need not stop to consider the sufficiency of the first paragraph of the complaint, as the special finding affirmatively discloses that the judgment rests wholly on the second paragraph, and under such circumstances, even though the insufficiency of the first paragraph be conceded, the overruling of the demurrer thereto would not be available error. Burkam v. Burk, 96 Ind. 270; Evansville, etc., R. R. Co. v. Maddux, 134 Ind. 571, 33 N.E. 345; Putt v. Putt, 149 Ind. 30, 48 N.E. 356; Elliott's App. Proc., section 637.

The second paragraph of the complaint alleges facts which, in substance, are as follows: The plaintiffs on the 29th day of October, 1894, were the owners in fee simple of certain described real estate situated in the city of Kokomo, Howard county, Indiana, which on that day they sold and conveyed by warranty deed to the defendant, Irene Lowry, for the consideration of $ 7,700.00. That the plaintiffs were to receive in consideration for the conveyance of the said real estate to the defendant other real estate described in the complaint, situated in the city of Frankfort, in Clinton county, Indiana, the same to be conveyed to the plaintiff by the defendant, subject to a mortgage lien existing thereon for $ 1,800.00, held by one Zimmerman, and also to be subject to the taxes for 1894, but subject to no other liens. This agreement, it is averred, was reduced to writing, and signed by the plaintiffs and the defendant, Mrs. Lowry, and also by her husband. After the execution of this contract by the parties, and before the execution by the plaintiffs of the deed conveying their Kokomo property to the defendant, it was discovered that certain other mortgage and judgment liens existed against the Frankfort property which Mrs. Lowry was to convey to the plaintiffs in consideration of the property to be conveyed to her by them. These liens were not mentioned in the contract, nor were the plaintiffs under its terms obligated to either pay the same or take the real estate to be conveyed to them by Mrs. Lowry subject thereto. After the plaintiffs became aware of the existence of these liens they declined to proceed any further in the transaction, or to close the trade by the delivery of the deed to the defendant for their Kokomo property until the liens in question were paid by the defendant, or provisions for their payment and satisfaction made by her. Thereupon the defendant, Mrs. Lowry, in order to induce the plaintiffs to complete the trade, and for the purpose of obtaining the title from the plaintiffs to the Kokomo property, verbally agreed with and promised them that as a part of the consideration for the said property she would fully pay off and discharge and satisfy these liens which existed on her Frankfort property within ten days thereafter. This promise and obligation, made upon the part of Mrs. Lowry, was accepted by the plaintiffs, and thereupon, on account of the same, plaintiffs were induced to and did deliver to the said defendant a deed for their property in Kokomo whereby the title to the same was conveyed to said defendant. It is alleged that the defendant wholly failed to keep her said promise to pay off and discharge said liens, and that the plaintiffs, in order to protect the Frankfort property which the defendant had conveyed to them, were finally compelled to and did pay off and satisfy these liens, and that no part of the money so paid by them in the discharge and satisfaction of the liens has been repaid by the defendant, and that the money so paid is now due and wholly unpaid, to the amount of $ 400.00. The fact that the defendant is insolvent, and that she has no property other than that conveyed to her by the plaintiffs, is shown, and the prayer is for a judgment against the defendant for the money alleged to be due the plaintiffs as purchase money, and that a vendor's lien be declared and foreclosed against the real estate so conveyed by them to the defendant.

Counsel for appellant claim that the paragraph is not sufficient on demurrer for the reason that the parol agreement relied...